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Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government

Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government implements the law for the next 50 years. In Australia the High court makes a ruling then legislation is put into the next legislative session to 'fix up' the issue with the existing law. Although this doesn't always happen, it seems to be the most common outcome.

smnrchrds 6y ago
Reminds me of the time a court ruling made hard drugs legal in Ireland. The legislature fixed the law in a matter of hours. https://www.independent.co.uk/news/world/europe/ireland-just-accidentally-legalised-ecstasy-ketamine-and-crystal-meth-10098612.html https://www.independent.co.uk/news/world/europe/ireland-just...
- rsynnott 6y ago
  That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.
- deleted 6y ago
  [deleted]
mnm1 6y ago
That's how the US system is supposed to work too. You're just pointing out its failure, not some fundamental difference.
jbeam 6y ago
There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute. Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all. The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body. Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.
- chrisco255 6y ago
  Yeah my gut feeling is that the relative balance is important to people, but I understand that if one party wins 2 or 3 elections in a row and there happens to be a lot of vacancies, they could swing the court heavily to the right or to the left. And since game theory dictates that you don't know when you'll have the presidency again, you can't nominate centrists to please the crowd you may find the court packed with your opponents + centrists...which means it leans to your opponents.
Talanes 6y ago
Congress has the power to enact new laws to replace rulings they fundamentally disagree with. It feels like the only difference is what happens when the legislature is too divided to do anything.
- dragonwriter 6y ago
  > Congress has the power to enact new laws to replace rulings they fundamentally disagree with. Not if it's a ruling regarding the Constitution, which very many of the interesting ones are, they don't. A supermajority of Congress can propose, but not enact, a change in that case.
dodobirdlord 6y ago
There is no reason the US government couldn't function in this manner in principle, but the lawmaking process is deliberately glacial and easy to disrupt. It is fairly difficult to repeal or modernize lawns in general, it's not a feature unique to court decisions. The SCOTUS usually rules on issues of federal law, which requires the majority of the House, 60% of the Senate, and either the President or sizable majorities of the other two to be on board with revising. When SCOTUS rules on constitutional law the bar is absurdly high, 75% of states. In niche scenarios as little as 2% of the population of the country can block a constitutional amendment. https://lawliberty.org/scalia-and-ginsburg-on-constitutional-amendments https://lawliberty.org/scalia-and-ginsburg-on-constitutional...
throwaway0a5e 6y ago
>and the ruling directs how the government implements the law for the next 50 years. The legislature and executive could pass a new law the same day as the ruling (well, maybe not if the new law required a constitutional amendment) if they really needed to and there was sufficient political will. In practice what you see is that the judicial branch only weighs in on controversial issues where there tends to be a pretty even split so it takes a long time for things to change enough for side to build the political will to get law passed to overturn the judicial precedent.

smnrchrds 6y ago

Reminds me of the time a court ruling made hard drugs legal in Ireland. The legislature fixed the law in a matter of hours. https://www.independent.co.uk/news/world/europe/ireland-just-accidentally-legalised-ecstasy-ketamine-and-crystal-meth-10098612.html https://www.independent.co.uk/news/world/europe/ireland-just...

rsynnott 6y ago
That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.
deleted 6y ago
[deleted]

mnm1 6y ago

That's how the US system is supposed to work too. You're just pointing out its failure, not some fundamental difference.

jbeam 6y ago

There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute. Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all. The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body. Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.

chrisco255 6y ago
Yeah my gut feeling is that the relative balance is important to people, but I understand that if one party wins 2 or 3 elections in a row and there happens to be a lot of vacancies, they could swing the court heavily to the right or to the left. And since game theory dictates that you don't know when you'll have the presidency again, you can't nominate centrists to please the crowd you may find the court packed with your opponents + centrists...which means it leans to your opponents.

Talanes 6y ago

Congress has the power to enact new laws to replace rulings they fundamentally disagree with. It feels like the only difference is what happens when the legislature is too divided to do anything.

dragonwriter 6y ago
> Congress has the power to enact new laws to replace rulings they fundamentally disagree with. Not if it's a ruling regarding the Constitution, which very many of the interesting ones are, they don't. A supermajority of Congress can propose, but not enact, a change in that case.

dodobirdlord 6y ago

There is no reason the US government couldn't function in this manner in principle, but the lawmaking process is deliberately glacial and easy to disrupt. It is fairly difficult to repeal or modernize lawns in general, it's not a feature unique to court decisions. The SCOTUS usually rules on issues of federal law, which requires the majority of the House, 60% of the Senate, and either the President or sizable majorities of the other two to be on board with revising. When SCOTUS rules on constitutional law the bar is absurdly high, 75% of states. In niche scenarios as little as 2% of the population of the country can block a constitutional amendment. https://lawliberty.org/scalia-and-ginsburg-on-constitutional-amendments https://lawliberty.org/scalia-and-ginsburg-on-constitutional...

throwaway0a5e 6y ago

>and the ruling directs how the government implements the law for the next 50 years. The legislature and executive could pass a new law the same day as the ruling (well, maybe not if the new law required a constitutional amendment) if they really needed to and there was sufficient political will. In practice what you see is that the judicial branch only weighs in on controversial issues where there tends to be a pretty even split so it takes a long time for things to change enough for side to build the political will to get law passed to overturn the judicial precedent.