this post was submitted on 30 May 2024
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Crazy idea maybe, but what if the senior justiciary of his country weren’t political appointees?
Problem is that requires good faith from both sides. If only one side adheres to that then the other side uses it as ammunition and inputs their politically appointed judges anyway.
Case in point, Senator Mitch McConnell crying out in 2015 about Obama wanting to appoint someone at the end of his term, saying that he would be robbing the next president of that legacy and it would be a political appointment. And then Mitch McConnell said nothing as they appointed and Trump approved three blatantly political nominees.
Both sides have to agree that those positions be apolitical or one side just ends up getting screwed. And of course we are not going to see that because Republicans don't have a shred of decency left and the whole party.
Texas has elected judges, and we'll, I'll let you decide how that's gone.
They ostensibly weren't until... Well, let's just say "recently"
Nah, there were plenty of dog shit rulings in the runup to the First Civil War
because that would require changing the constitution and good luck getting republicans to go along with it
Exactly.
SCOTUS justices need to be elected and have term limits. Give them three total 4 year terms max.
EDIT: I know this would take a Constitutional amendment to change, which given our current political climate, is functionally impossible
As a Canadian, that sounds even worse to me, lol. Elected judges? That's insanity. Judges should never be making decisions based on political expedience.
Judges should be chosen by people who are experts in the law based on their knowledge and experience.
In Canada, I suppose it's loosely political, but it's several steps removed from direct political appointment. The PM and cabinet appoint someone to be the head of the judiciary, confirmed by the Governor General, and Supreme Court judges can be held accountable by the Senate and House in cases of misconduct.
Electing judges would make it worse, not better, imho.
The best solution I've heard for the US wouldn't require a constitutional amendment, it's to make the Supreme Court position last 18 years before becoming a Justice Emeritus (or whatever) that's mostly ceremonial. That takes away the incentive to stuff the judiciary with young judges, and adds stability that each presidential term is 2 justice appointments on a slowly rolling basis.
Dumb question but like... Is there an obvious best way to do this?
Not really obviously best. But there's obvious, well known problems that can be obviously improved.
Probably pull justices from the lower courts at random to hear individual cases. Much harder to bribe all the judges than like two well known supreme Court justices.
One take I've seen some Australian lawyers suggest is that the extent of politicisation of America's Supreme Court is an inevitable result of how highly political their constitution is.
In Australia, our constitution deals with the basic functioning of government; how elections take place, who can vote, and mostly fairly boring procedural stuff like that.
America's constitution quite famously lays out a number of very specific rights. Rights that are, by their very nature, quite politiciseable and open to interpretation. If SCOTUS is able to invent rights that they claim are implied by the written text, with the legislature unable to legislate around it, that's a problem. It becomes even more of a problem when SCOTUS decides they can infer rights that are implied by those rights which SCOTUS themselves inferred. Deciding what rights people have—or removing those rights—should be the job of democratically elected representatives, not political appointees. So the court granting a right to abortion because they say it's implied that you have this right based on the right to privacy (quite a large stretch, IMO), and that right to privacy being implied by your explicit right to due process (a more reasonable inference), is quite a silly arrangement. Better for the legislature to simply do their job.
Not that this is in any way "simple". It would require a complete ground-up rewrite of the American constitution. And that's obviously never going to happen.
The Supreme Court idea of judicial review was, essentially, created by an early Chief Justice using the classic children's excuse "the rules don't say I can't do this so therefore I'm doing it and you can't stop me"
Edit: I had this somewhat wrong. After reading, it seems a lot of the people who wrote and debated on the Constitution wrote strongly in support of judicial review, and it was in fact voted on and approved by multiple state legislatures after the Constitution was adopted. It simply wasn't worded explicitly into the Constitution. Chief Justice John Marshall did issue an official ruling that made it a standard practice but it was not a new concept.
I do think that the idea of judicial review itself makes sense. After all, what's the point of a constitution if the legislature can just makes laws that go directly against it? The problem, in my view, is that the constitution covers too many things, and does so in far too unspecific terms, which makes for an incredibly broad range of possible political interpretations.