Political affiliation in the judiciary

[StringJunky]

This post was inspired by the death of Antonin Scalia and the apparent overt political leanings of his profession in the US which can ultimately decide policy. I'd like to focus on the weight the judiciary carries in political policy via test cases. I found this UK article about the appointment of a then-new UK Supreme Court judge in 2011. He had a lot to say about the importance of the judiciary's influence on government policy.

 

Do you think that this approach that government should make policy and not by judges? Here's the thrust of what I'm on about. It's worth reading the page for more detail:

 

 

Last week the attorney general, Dominic Grieve QC, appeared before the upper chamber of the ECHR and argued that "sensitive issues of social policy [such as prisoners' voting rights] should be decided by national parliaments".

 

In a speech at Lincoln's Inn, Sumption, who is representing the Chelsea FC owner Roman Abromovich in a £3bn damages case at the high court before taking his seat on the UK's highest court, said "one of the most significant constitutional changes" since the second world war "has been the rise in the political significance of the judiciary, as a result of the increasingly vigorous exercise of its powers of judicial review".

 

"How far," he asked, "can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?

"The tendency of the courts to intervene in the making of 'macro-policy' has become more pronounced [and]... is unduly influenced by the degree of judicial aversion to the policy in question."

 

He added: "Part of the problem has been that the judiciary and the executive are looking at the issue from different ends of the telescope. The judiciary's instincts are moulded by their experience of individual cases, many of which have involved profound human tragedies to which no judge could be indifferent.

 

"By comparison, politicians, policymakers and electors are primarily concerned by the problem viewed impersonally and en masse."

 

Judges are not politically partisan, he stressed, but some cases involved them "dealing with with matters (namely the merits of policy decisions) which in a democracy are the proper function of parliament and of ministers answerable to parliament and the electorate".

 

http://www.theguardian.com/law/2011/nov/08/supreme-court-appointee-judges-politicised

 

Note the difference (bolded) between the required political impartiality of judges in the UK vs their American counterparts, who wear their affiliation like a banner.

Edited February 14, 2016 by StringJunky

[John Cuthber]

The American system hasn't understood the idea that the judiciary should be separate from the legislature.

I don't know why not, but I think a lot of the citizens would be better off if it were.

[StringJunky]

The American system hasn't understood the idea that the judiciary should be separate from the legislature.

I don't know why not, but I think a lot of the citizens would be better off if it were.

Yes, I agree, I suppose this subject is quite closely associated with the "What is America's biggest problem?" thread, as a possible cause.

[Endy0816]

More about knowing where they will stand on present and future issues.

 

Generally nomination and confirmation process weeds out problems and lifetime post means they are insulated from politics once in.

 

They can interpret laws but not make them, which places limits on their relative power.

[EdEarl]

Big money, like air, leaks into containers having less of it, except air is unbiased.

[iNow]

They'd likely say they're unaffiliated, just using the "correct" interpretation of the constitution... That its unrelated to party or politics, even though some parties and politicians happen to share their stance/approach.

[Ten oz]

Politics change over time. That is one of the reason why Supreme Court Justices get life time appointments. It is meant to insulate them from the politics of the day to a degree. Sadly political action groups like the Federalist Society have created a method to get long term political ideology built into the system. Federalist society goes beyond political affiliation and straight into a netwroked society loyalty where specific ideology is groomed. Once part of such a society positions are dependent upon loyalty and that is an obvious conflict of interest.

 

I am not sure how this can be resolved constitunational. The President has total discretion over whom they nominate.

[overtone]

This post was inspired by the death of Antonin Scalia and the apparent overt political leanings of his profession in the US which can ultimately decide policy.

This is to a significant degree a new factor in the US Supreme Court. The appointment of Supreme Court Justices has always been pressured, politically, but the former necessity of maintaining at least the appearance of impartiality has until the last couple of decades restricted such appointments.

 

Sounds like a broken record, but the legacy of Reagan is the dead elephant in the room that keeps getting in the way. After the already dubious nomination of Antonin Scalia - a political ideologue and dubious "intellectual" , but not an overt Party and political operative - the nomination of Robert Bork was so obviously a political move that when it worked - that is, when it did not disgrace the President or Party involved, and did create elbow room for similarly motivated nominations in the future - it politicized the Court from then on.

 

On one "side", of course. It's not a "both sides" problem.

Edited February 14, 2016 by overtone

[Willie71]

I think this started before Reaga, with Nixon appointing Powell to the Supreme Court. Powell was corporatist, and started the trend of increased money in politics.

 

did Powell’s political views influence his judicial decisions? The evidence is mixed. Powell did embrace expansion of corporate privilege and wrote the majority opinion in First National Bank of Boston v. Bellotti, a 1978 decision that effectively invented a First Amendment “right” for corporations to influence ballot questions. On social issues, he was a moderate, whose votes often surprised his backers.

http://reclaimdemocracy.org/powell_memo_lewis/

 

The memo is too long to post in its entirety, so click the link, and you will see the start of the decline in the words. They might as well be describing the current state of affairs, so the strategy us working beautifully.