The Courts and Communism

[BH]

I heard an interesting opinion the other day. I'm not saying I agree or disagree just thought it interesting.

I was talking to some people about politics and judicial review came up. Someone said that the courts with judicial review was our version of the Communist party in the USSR. Just as the Communist party dictated how things would be run and not the actual elected officials or voters so the courts here overrule elected officials and voters and force it's agenda as a dictator. The individual stated that is was a back door way for the elites to dictate should democracy or republican representation government fail to let them have what they want.

What is your opinion on this?

 

[SLD]

Typical ignorant right wing rant.

 

[Elixir]

Typical ignorant right wing rant.

Sounds more like a stance that was carefully crafted to make a Putin/Xi-type authoritarian “both sides” argument. When “elites” are mentioned as the villains, it’s a sure bet that it’s an appeal to Teh Stoopids.

 

[Politesse]

Netanyahu fan, eh?

I heard an interesting opinion the other day. I'm not saying I agree or disagree just thought it interesting.

I was talking to some people about politics and judicial review came up. Someone said that the courts with judicial review was our version of the Communist party in the USSR. Just as the Communist party dictated how things would be run and not the actual elected officials or voters so the courts here overrule elected officials and voters and force it's agenda as a dictator. The individual stated that is was a back door way for the elites to dictate should democracy or republican representation government fail to let them have what they want.

What is your opinion on this?

The purpose of the courts is to determine whether an action is legal or not within the canon of settled law. Creating new law is the exclusive province of the legislative branch, not the judicial. If a president feels constrained by "the courts", then democracy and the rule of law are what they truly object to.

Communism, common ownership of the means of material production in society, has no role in explaining why we entrust the interpretation of the law to an elite cadre of wealthy lawyers.

 

[SLD]

Netanyahu fan, eh?

I heard an interesting opinion the other day. I'm not saying I agree or disagree just thought it interesting.

I was talking to some people about politics and judicial review came up. Someone said that the courts with judicial review was our version of the Communist party in the USSR. Just as the Communist party dictated how things would be run and not the actual elected officials or voters so the courts here overrule elected officials and voters and force it's agenda as a dictator. The individual stated that is was a back door way for the elites to dictate should democracy or republican representation government fail to let them have what they want.

What is your opinion on this?

The purpose of the courts is to determine whether an action is legal or not within the canon of settled law. Creating new law is the exclusive province of the legislative branch, not the judicial. If a president feels constrained by "the courts", then democracy and the rule of law are what they truly object to.

Communism, common ownership of the means of material production in society, has no role in explaining why we entrust the interpretation of the law to an elite cadre of wealthy lawyers.

Not exactly. We are a common law country. our courts do make law.

 

[Politesse]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

 

[Shadowy Man]

Is it an issue with the judicial review or just the number of jurists? If SC cases were decided by 100 judges would that be more democratic? Would electing the judges be more democratic? If it were like the legislature but just reviewing laws instead of writing them?

As it is in the US now, just five people can make a huge, lasting impact on society.

 

[Politesse]

Would electing the judges be more democratic?

The American public is not qualified to assess who is or is not a good judge. Most Americans could not decribe in any detail what a judge even does for a living, hour by hour and task by task, let alone how to determine whether or not a person's work record indicates competent performance at those roles.

 

[Cheerful Charlie]

I heard an interesting opinion the other day. I'm not saying I agree or disagree just thought it interesting.

I was talking to some people about politics and judicial review came up. Someone said that the courts with judicial review was our version of the Communist party in the USSR. Just as the Communist party dictated how things would be run and not the actual elected officials or voters so the courts here overrule elected officials and voters and force it's agenda as a dictator. The individual stated that is was a back door way for the elites to dictate should democracy or republican representation government fail to let them have what they want.

What is your opinion on this?

You mean like the GOP fake elector trick? Or the 123 GOP congressmen who refused to vote to accept the Arizina and Pennsylvania election results? Or right wing GOP attempts in Arizona's legislature to passs laws allowing the GOP to throw out election results they did not like and appoint right wing Republicans the winner? And other GOP election theft efforts? Does the make the GOP communist?

 

[Cheerful Charlie]

Would electing the judges be more democratic?

The American public is not qualified to assess who is or is not a good judge. Most Americans could not decribe in any detail what a judge even does for a living, hour by hour and task by task, let alone how to determine whether or not a person's work record indicates competent performance at those roles.

I am down here in Texas. Every election, we have swarms of judges to vote for. Supposedly, these elections are non-partisan, but really right wingers vote for right wing judges and Liberals Democratic judges. Houston, a blue part of Texas over the last decade has all but eliminated GOP judges. I can gurantee you most voters know nothing about these judges when the walk into a voting booth. I know sites to research these judges. But I am in a small minority that does so. I look for Democrats with experience, good reputations among the local legal community and good temperament. I look out for perenniel candidate kooks, and people with little experience.

 

[Shadowy Man]

Would electing the judges be more democratic?

The American public is not qualified to assess who is or is not a good judge. Most Americans could not decribe in any detail what a judge even does for a living, hour by hour and task by task, let alone how to determine whether or not a person's work record indicates competent performance at those roles.

And how does this differ from any other government positioned for which there are elections? And has been pointed out there are judges to get voted in and lower levels.

I’m just saying that the original comparison was that the judiciary are like dictators, so presumably being able to be voted out would fix that.

In a local election where I live a judge got recalled by vote.

 

[bilby]

I am down here in Texas. Every election, we have swarms of judges to vote for.

Do you also elect airline pilots and cardiovascular surgeons?

There's such a thing as too much democracy.

 

[bigfield]

Is it an issue with the judicial review or just the number of jurists? If SC cases were decided by 100 judges would that be more democratic? Would electing the judges be more democratic? If it were like the legislature but just reviewing laws instead of writing them?

As it is in the US now, just five people can make a huge, lasting impact on society.

This looks like a pretty good answer:

Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government.

Why not fix this, and write more specific laws? As far as I know, acts of congress don't have to stay under a maximum word count and there's no limit to how many of them you can pass (besides the practical problem of running out of time).

I've seen that some bills, the ones that modigy existing acts, can read like the legal version of a patch file. Replace this sentence, add this paragraph, delete this section etc. It's not clear to me why a legislature couldn't just keep patching statutes each time they find a bug.

If you reduce the scope for interpretation, it no longer becomes necessary or useful to appoint judges who will interpret laws according to your political aims. Instead the only criterion in choosing a senior judge is that they are leading experts in what they do. If you can get to that point then selecting judges can be delegated to an independent commission, instead of a partisan executive or legislature.

 

[Politesse]

Why not fix this, and write more specific laws? As far as I know, acts of congress don't have to stay under a maximum word count and there's no limit to how many of them you can pass (besides the practical problem of running out of time).

Because Congress is fundamentally ineffective, and passes very little meaningful legislation. Ultimately, most legislators buy seats on the House and Senate primarily to achieve a specific set of personal goals that will benefit themselves and their various business ventures, and engaging in more general lawmaking, especially politically contentious lawmaking, is more likely to harm those endeavors than help them. They aren't actually interested in resolving the legal issues of our day, unless it reaches a point where public outcry forces their hand. Getting elected to a national seat is extremely expensive and time consuming, and people aren't going to do it unless they expect a significant return on the investment.

 

[SLD]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

Wrong. The common law is judge made law.

 

[Politesse]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

Wrong. The common law is judge made law.

Ah. Just saying things, then.

Okey-doke.

Lemme try.

No, I'm right!

Glad that's settled then.

 

[SLD]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

Wrong. The common law is judge made law.

Ah. Just saying things, then.

Okey-doke.

Lemme try.

No, I'm right!

Glad that's settled then.

just read about the common law. Trust me. Judges do indeed make law, not just interpret statutes. That’s the point of common law. Constitution interpretation is a different matter.

 

[Politesse]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

Wrong. The common law is judge made law.

Ah. Just saying things, then.

Okey-doke.

Lemme try.

No, I'm right!

Glad that's settled then.

just read about the common law. Trust me. Judges do indeed make law, not just interpret statutes. That’s the point of common law. Constitution interpretation is a different matter.

No, trust me, I read some differernt stuff.

 

[SLD]

Not exactly. We are a common law country.

True but irrelevant, if the US is the "we" in question. We are indeed a common law country, with lawyers making arguments, presenting evidence, and so forth. But our courts do not make law. Ultimately, they are charged with interpreting constitutional precedent, not inventing law, and there is no decision the court system makes that cannot be overruled by the legislative branch if it so chooses. The capstone power lies with us; that we so seldom use it, and lazily force the SCOTUS to define the scope of Constitutional rights through simple lack of legistlative clarity, is more a condemnation of the non-functionality of our legislative bodies than an honest critique of the structure of our government. Even the present SCOTUS, which has interpreted its role far more authoritatively (and capriciously) than any other such body in our nation's history, still feels compelled to at least pretend fidelity to Constitutional priority.

Wrong. The common law is judge made law.

Ah. Just saying things, then.

Okey-doke.

Lemme try.

No, I'm right!

Glad that's settled then.

just read about the common law. Trust me. Judges do indeed make law, not just interpret statutes. That’s the point of common law. Constitution interpretation is a different matter.

No, trust me, I read some differernt stuff.

I highly doubt it. It’s actually a right wing trope that judges only interpret law. It flies in the face of a 1,000 year common law tradition. It’s an attempt to destroy the independence of the judiciary, just like the OP. People keep repeating it ad nauseum so others will believe it. But it’s fundamentally a flawed way to look at law in general. The common law has a very rich tradition that conservatives want to destroy, and consequently the very rights of the people.