Obama isn't even halfway through his first term, and his re-election is by no means certain but he is set to appoint his second Supreme Court Justice. Not only that but he will have a remit to appoint the most liberal justice on the bench. Supreme Court Justices shape the ideological framework of the law for decades after their appointment, and decide the fundamental rights of American citizens. This seems a phenomenally large impression for a potential one term President to make on his nation.
Imagine a scenario where Obama fades massively over the course of his term and is embroiled in scandal. Even if he loses every state in the next election his legacy will still affect American politics for years, potentially decades. This is the madness of the American system of law, to have a Supreme Court that are accountable to no one is debatable enough but to have it's appointments dominated by politics is quite another. Unanswerable power coupled with the faux legitimacy that the appointment process brings creates monsters out of judges. They believe they can rule any way they want, whether they get appointed as a conservative and then turn into arch liberals the second they take the vow, or ignoring centuries of legal precedent to determine a ruling only counts once.
Above the law and yet in control of the law, the Supreme Justice is a relic of a time when no one could see past absolutism. The law is not beyond politics, it is the substance of politics, to attempt to separate the two as America have tried is to lie. The Supreme Court is an overtly political body, its rulings have a direct impact on the acts of elected legislatures, by falsely separating them the American system has created a supreme power, beyond accountability but mired in realpolitik.
Valid criticisms, all, but I can’t help but wonder what a batter system may look like. The codified constitution in America limits the pragmatic approaches that they can take, as an issue of constitutional interpretation is far too big a decision to be made on a ‘which ever judge you happened to get’ case law basis. As such, a supreme court is necessary in one form or another. If we dismiss the current system, we are faced with two options: One, we remove politics completely and have the Supreme court appointed by a non-partisan, non-governmental body. The problem there is that the supreme law making body would therefore have no mandate at all from the people, no matter how tenuous, and there is always the danger of cultural and systematic bias in the selection committee. Alternatively, we make the supreme court overtly political, asking that judges be directly elected and held to their mandate, but then that opens the door for accusations of electioneering.
ReplyDeleteI would agree that a codified consitution makes a Supreme Court more necessary, but I think you are missing a more realistic solution. I feel it would be best if they had to renew their seat on the panel every 8 years, so they had to go through the rigorous senate confirmation committee where they could be held to account for their rulings. If those rulings are fair they are likely to stay on the bench, the Senate has normally been fair in SC appointments and I feel it would add the necessary check to the currently unlimited power of a Supreme Court Justice.
ReplyDeleteAgreed, there are a lot of problems with concepts of infallible public figures (just ask the pope). The only problem is how you check them. Anything other than open democracy (and indeed, even that) opens the whole debate as to who chooses those who sit on the sensate committee, how they make their rulings, if and how those rulings would be appealed etc. Although it would undoubtedly remove some problems, it does potentially create new ones in the form of another layer of political point scoring.
ReplyDelete