But the deeper problem is whether their role is needed at all. Why not permit existing representatives to make laws reflecting the needs of the time? Court judges themselves have pointed out that if Congress doesn’t like the Court rulings, it should pass its own laws, or even a constitutional amendment, to provide a new point of reference.
Unless I’m grossly misunderstanding the author’s argument, this is already how the system works (at least, when it is actually working as intended). The Court doesn’t legislate–when it says congress should “pass its own laws or amend the constitution to provide a new frame of reference,” it is saying so because it only has the power review existing laws brought to controversy–it’s already up to the legislature to do exactly what the author is asking.
The current Court is certainly abusing its discretion in practice, and that absolutely needs addressed and reformed, but I’m struggling to imagine a workable system without some concrete form of review/check on the legislature (and even that was, to a degree, an open question before Marbury v. Madison) even if just to ensure due process and equal protection.
I guess my question is (and I’m honestly interested in the discussion): what safeguard would replace the Supreme Court? The current Court is abysmal and needs addressing, but I’m even less convinced that doing away with the Supreme Court and leaving things up the the Federal/State legislatures would be beneficial considering many of the legislatures we have today and the laws they are passing.
Yeah, part of the role of SCOTUS is (ostensibly) to make sure you can’t just majority-vote over peoples’ rights. They haven’t been doing a great job, but imagine if there was no one to rule against ISL being implemented at the state legislature level; bye bye democracy.
You need some kind of baseline to stop democracy from voting itself out of existence, and in the US that is SCOTUS and the constitution.
what safeguard would replace the Supreme Court
What safeguards actually work in our government? I think there’s a fundamental issue with so called ‘safeguards’ in that it distills a level of trust in the system that it doesn’t deserve. This trust might make people complacent and less willing to throw out a corrupt government because they believe they are protected from the worst behavior.
I think there’s a broader issue at stake here in that the US has a ‘letter of the law’ system rather than a ‘spirit of the law’ system. Both systems require an amount of overhead to clarify what the letter or the spirit that is written into law truly means. In the latter system, checks and balances are on the members of the judicial branch itself, with complicated systems to ensure training, impartiality, etc. You need strong systems to keep judges accountable since they are where interpretation happens.
In letter of the law systems, however, emphasis is put on the words themselves and abstracted from the judges. These kinds of systems are more centralized because the meaning of said words have to be clarified either at the point of legislation, or by a system designed by the judicial branch to be applied universally across all judgements. The supreme court needs to act as this arbiter for a letter of the law system to exist. Removal of the supreme court would encourage the system to shift towards a spirit of the law system, which isn’t particularly compatible with the existing structures and precedence.
The only way forward I see to restore legitimacy to the court would be to implement systems that are more often seen in spirit of the law countries - an impartial board to review the legitimacy of sitting judges, rotating terms, the ability to oust judges which are too biased, or other systems to prevent corruption that often comes with highly centralized forms of government.
Just so we’re on the same page, could you give an example of a “Spirit of the Law” system, or a country that uses one? I want to make sure I’m not mixing up concepts.
As I’m understanding the terms now, I’m not sure I agree that the US has either a Letter of the Law or a Spirit of the Law system, at least not inherently one over the other. Letter of the Law appears to be the current prevailing majority view, but that’s largely because the majority of the Court are Originalists and Textualist (and even then they’re only really Letter of the Law when it suits them). But Spirit of the Law is still an alive legal philosophy in the judiciary–many landmark 5th and 14th Amendment cases find their basis there, for example. I’d argue these examples and many other Holdings serve themselves as examples of the “safeguards” working, even if the system isn’t always perfect.
Overall I ultimately agree with your last paragraph–that said, I think bang for buck reform of the legislature is going to make the most appreciable difference for many of these issues rather than reform of the judicial branch itself (not that it should be one or the other, but it seems to me that many of the issues in the judicial and executive branches are symptoms stemming from a disfunctional legislative system).
