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Biden worries ‘extreme’ supreme court can’t be relied on to uphold rule of law
(www.theguardian.com)
this post was submitted on 02 Oct 2023
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A system that appoints supreme constitutional judges for life and without even halfway serious democratic checks and balances seems to me the perfect recipe for disaster and corruption. But hey, I'm from Europe, so what do I know... ¯_(ツ)_/¯
Yes but you fail to consider that some guys wrote on a paper like 250 years ago and we’ve decided that everything needs to be viewed through the lens of either “does this agree with an incredibly pedantic and stilted reading of this document” or “what would those historical dudes think about this” - whichever happens to be more politically expedient for you at the moment, but the second one tends to give you more flexibility.
I also love the stars and bars I've seen on Canadian trucks or in their front yard.
Makes perfect sense. Canada has a rich tradition of being a southern state during the civil war.
To be fair, they did expect us to modify the constitution from generation to generation.
Ultimately the failure is ours.
It's amazing to me the way we've elevated the constitution to near biblical proportions. And just like the Bible where every church and pastor interprets it in their own way, so too do our 9 oracles in black robes interpret the will of our village elders from ages past.
"So shall it be written, so shall it be done", eh?
There are parallels in your example because it all comes down to governance of people, but I truly don't think that people look at the Constitution/Courts like they do at the Bible.
One of the more interesting things I saw (on this topic) was a historian stating that George Washington (and his contemporaries) would have been able to relate the world of Julius Cesar more than they would our modern world.
I think about that A LOT whenever I hear some idiot spout nonsense about the "vision and ideals" of the founding fathers
I thought Washington was too busy sending faxes to samurai.
Yup, I see. A bit like with the Bible and other holy books then. Even here in Europe, there are many who see the wording of those as the ultimate truth. No need to adjust anything, they say. It's all good. It's god's will or whatever - if it helps their agenda, that is. Jesus, that must be frustrating.
They also tend to ignore pretty much all the stuff Jesus actually taught.
You forgot about Supply-Side Jesus.
Yea, some things do not allign particularly well with certain agendas. So best to just leave them out.
That’s kind of what it’s devolved into, tbh. The confluence of Christian fundamentalism and politics is a scary fucking thing, because when you’re “doing god’s work”, you can justify literally anything to yourself and your fellow “good Christians”.
Europe at least has had the benefit of being able to work country-by-country, whereas the US is one massive tangled morass. Hell, even achieving the kind of restructuring and harmonious cooperation that you see in the EU had to come as a result of two of the most atrocious wars humanity has ever mustered in the span of less than half a century.
Kinda puts it a little more into perspective when you consider the absolute shit-show Europe had to turn into before it was ready to grow up.
Yes, absolutely right. However, it is very sad that the Europeans in particular do not seem to have learned much from their history. I am German and here, unfortunately, a blatantly fascist party is on the rise again. That political direction is unfortunately quite popular in many European countries as of late. It might be similar to what is happening in America: the standard of living is falling and so people seem to be longing for a strong leader who will supposedly improve their living situation. The fact that this strong leader has completely different interests is apparently of no concern to many. They simply vote for the party whose rhetoric appeals to them (foreigners are to blame and so on), and that promises a way back to the good old days. It is enough to make you cry.
Yeah. That's basically what's happening in the US. Combine that with our two political parties not giving a fuck about the voters belonging to the other party, and you've got two, deeply entrenched political parties which can basically do whatever they want because your only real choice is between red or blue.
Then you have the... god I hate this term ...privileged... people who vote and donate to team blue and insist on the blue team taking the high road at all costs; because even if the blue team loses you can still claim the moral high ground and that's all that matters in their eyes; they're too comfy and financially insulated to truly feel the affect that blue team losing would have because of feel-good morality.
This comes at the cost of civil rights, because it means team blue (the party currently concerned with civil rights) doesn't really have a reason to expand their voter base outside of the areas they're already entrenched. That's where their big donors are, and they might have to sacrifice their righteous morality in order to expand into the hard red areas.
You've also got team red voters who's views actually align more with team blue, but they vote team red because team red is the only one who actually pretends to listen and serve them; because team blue is too eager to take Ls if it means their precious morality and ethics are intact even though it risks allowing team red to destroy marginalized communities. Also, team red is destroying the quality of life of their voters while successfully convincing them that it's team blue's fault, because any attempt team blue makes at countering them is half-hearted at best.
My biggest fear is that we're heading towards a new civil war, and the history books aren't going to teach how team blue assisted in team red's bullshit by stubbornly insisting that they mustn't take any action that might be immoral or unethical while team red runs rampant.
For better or worse, it's next to impossible to successfully modify the Constitution without significant support. It has to be ratified by about 38 States (3/4 of the State legislatures or 3/4 of the conventions called in each State). That's after either 2/3 of both Houses of Congress (2/3 of the House of Representatives and 2/3 of the Senate) propose an amendment or 2/3 of the State legislatures request one via a convention.
In a way, it's a good thing since it keeps the Constitution from being able to be changed on a whim, and it mostly keeps it from being affected by the political tug-of-war that happens every few years in the US.
It's also a bad thing, though, as it makes it very difficult to adapt to certain situations that wouldn't have happened 200+ years ago.
Not anymore. They are just making shit up now. The check is congress impeaching them. That will not happen if enough people demand it.
It'll never happen as long as republicans control either half of congress. People have been sounding the alarm on their power grabs for decades and only now are some people starting to listen.
I expect the American experiment to fail in my lifetime.
I’m not sure that I see the American Collapse happening in my lifetime as a certainty, but I would agree that it’s a very strong possibility if we don’t get our shit together pretty fucking quick.
It's won't collapse. We'll become another authoritarian state.
It'll be isolationist so only Mexico should be worried.
Hey. You can't just use common sense when it comes to our Judicial System. That would be too logical. What next? You gonna ask that our Supreme Court Justices have Ethics Rules!?
What is this world coming to?
Yes, sorry, that would be too much to ask. I'll show myself out.
It's more a symptom of the FPTP voting system
Europe has viable parties outside the two most popular in any given election cycle, so partisan loyalty is less of a threat to the application of removal proceedings or other punitive measures.
Article V of the the Constitution.
https://constitution.congress.gov/browse/essay/artV-1/ALDE_00000507/#
Amending the Constitution was intended to be much more usable, but over half the country doesn't vote.
I can see how 9 out of 13 colonies (or equivalent votes in congress) might be more plausible than 34/50 states or 357/535 congresspeople (house + senate) considering the state of politics today.
The framers counted on congresspersons being good faith actors that loved America, and on a populace that wasn't apathetic or incompetent on important matters of state.
To be fair, the farmers "envisioned" a country where a good proportion of the population was literally enslaved. Let's not get ahead of ourselves
Yeah, the drafters of our constitution really fucked up in that regard.
I'd attempt to solve the problem by creating an independent judicial review board entirely separate from the US govt. similar to other "professional" professions. Let these judges go up for review every 5 years and if they are found to be in breach of conduct, remove them from the bench.
Also, rework how they get to the bench in the first place. Of course the SC is going to be politically motivated. They only get their seats because one of the two big parties literally puts them there. Impartiality is really hard to claim when you owe your entire existence as a SC judge to a giant money machine.
Lifetime appointments mean they don't owe anyone shit. They have nothing to gain by being loyal to the party that appointed them. There are better ways to accomplish the same thing, but it's at least one facet of how the court works that seems to do what it's supposed to.
Staying loyal still keeps the (extra) cash flow going.
The whole point of a lifetime appointment is that they can abandon all political concerns once they're in the SCOTUS - so they don't have to be political. And I've seen that happen - while they obviously stay conservative or progressive, they tend to drift away from an alignment with the parties - with exceptions, obviously.
But, as with all other branches of the US government, it's becoming clear that we've exited the era of being able to trust our leadership to support the Constitution and represent the people.
(For me, it wasn't even Trump that snapped me out of that mindset. It was when they were talking about outlawing congressional insider trading. One of the Republicans said, out loud and in public, that the notion of prohibiting congressional sick trading was off the table, because it was a core part of the job. He said something like, "half of us wouldn't be here" - as though that was a bad thing.)
You should get the same behavior with a single term appointment with no possibility of a second term. There would also have to be limits to what they can do AFTER the appointment too, so they don't use their single term power to set themselves up when they are done. I guess it would have to be a single term appointment with an extended ban on future employment or investments.
But how long would those appointments be? Many justices have written about how long it took to adjust sitting on Scotus, even if they had plenty of experience on the court of appeals(Sotomayor I think?). So like a 10 year period might work. Scalia and RBG voted together a surprising number of times... So there is something to the experience brought to the table. Thomas's corruption is just nuts and Alito is frustrating, but the other justices at least have substantiating arguments mostly.
In Germany it's one 12-year term, generous pension afterwards. Minimum age 40, maximum age 68 or their terms ends prematurely once their successor is appointed. They have to be actual jurists (passed 2nd state exam and/or are a professor of law). Half are elected by the Bundestag (Parliament), half by the Bundesrat (representing the states), in both cases with 2/3rd majority. Ultimately appointed by the Federal President but not in a deciding role but acting as notary of the state.
That 2/3rd majority rule has, because no party can reach it on their own, led to bench seats being allocated proportionally to electoral results, parties picking their favourite out of the possible candidates (the ministry of justice draws up a list of all eligible) and other parties adding the rest of the necessary votes unless there's an actually important reason to veto a candidate, say, for being an ideologue instead of jurist.
That part would be very hard to transplant over to the US. The rest is the culture of the court itself, they're notorious for being, well, jurists, not giving a rat's arse about politics leading to decisions like this, blindsiding everyone on either side of the controversy. A judge may come in with political leanings but they're going to get beaten into shape by the rest of the judges very quickly.
There's also other structural differences, e.g. the constitutional court pretty much only doing constitutional review, they're not part of the ordinary instance chain. They have other prerogatives (e.g. banning parties, deciding cases where constitutional organs sue each other) but constitutional review is pretty much their sole bread and butter.
I don't necessarily think the founders fucked up. It's important that the court be free from political influence when deciding cases so I think they had the right idea. I'm not necessarily opposed to lifetime appointments. Where I think there's a lot of room for improvement is the nomination and confirmation process. It's entirely political, contentious, and has produced a few lousy justices in recent years.
This idea of one party only appointing conservatives and the other only appointing liberals and both sides hating the other's appointments is what's fucked up. What could be interesting is a bipartisan Congressional nominating committee that produces candidates that are at least palatable to both sides. Let's say there's a 2/3 majority requirement for the committee to nominate someone. They could produce a list of several candidates and the president nominates one of them. Basically take this process away from partisan NGOs and give it to a bipartisan group of elected representatives.
The thing is, the drafters of the constitution didnt mean for the supreme Court to be as powerful as it is today. There is nothing in the constitution that even grants them the power of judicial review. They just interpreted that they inherently had that power, and we've gone along with it for the last hundred years.
According to the drafters, separating the judicial branch from the executive was a way to inhibit veto power and to prevent the executive from reshaping laws that have been passed by Congress. There only other function was to handle cases between two states, and to oversee an impeachment trial in the Senate.
It wasn't entirely about the rights to review, but also about their impotence to do more than just talk. The balance of powers isn't just that Congress can impeach, but also that they can write laws that address the Court's arguments directly and the executive can just tell them "no". But we've let them just be the final arbiter of law with no response from either other body, so they're now just unelected super-legislators.
When the court is embroiled in corruption scandals and abandoning precedent to strip rights from citizens, the other executive institutions in the country shouldn't just be acquiescing to their demands. Instead we get "you may be unethical and corrupt, and firing off society shaking reinterpretations to settled law, but thems the breaks".
Tiptoeing into calling their adherence to the rule of law into question is moving in the right direction, but very slowly. Maybe that's the right way to do it, but I don't really trust that it's not just a misplaced belief in the system to work itself out so moderates don't have to actually do anything that might be scary.