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Unpopular opinion, really strong judicial review like this (1 judge is able to strike down whatever law the legislature of Congress passes based on vague criter

Unpopular opinion, really strong judicial review like this (1 judge is able to strike down whatever law the legislature of Congress passes based on vague criteria) is basically incompatible with democracy. At a minimum it should take a supermajority of a panel of judges to find a law 'unconstitutional'. It grants absolutely vast, arbitrary power to 1 single official because they happened to have attended law school. The system of government where 1 person has this much power but they don't have a JD is usually called a 'dictatorship!' And if your response is- well I like this particular judge's ruling so it's OK, I would remind you that a different judge could come up with an equally stretched right-wing ruling. After all, a state could pass an anti-carbon pollution law only for 1 judge to arbitrarily decide that that somehow violates the constitution, or something. Right-wing judges have struck down gun control laws, campaign financing ones like Citizens United, anti-corruption laws.... the list goes on and on. Strong judicial review is arbitrary and capricious

Supermancho 3y ago
> At a minimum it should take a supermajority of a panel of judges to find a law 'unconstitutional'. Legal or moral correctness, is not usually limited to a single judicial decision. When it is, it's remarkable enough that we learn about it early in schooling. Just because a Judge ruled to strike down a law, does not impact democracy in any way. It's a legal maneuver that will be challenged both in another legal arena and in the court of public opinion. These are the social frameworks that exist to protect against arbitrary bad actors and they matter, regardless if you think it's "OK" in isolation or not. Everyone can agree that judges need some leeway in making decisions that are in the best public interest, regardless of the letter of the law...re: misspellings, grammar issues, ill-intent, etc. I happen to be a statist and think that the mere challenge to Federal Policy should not be discounted, because of futility. It's important to challenge governance from a distance, even today.
- hash872 3y ago
  >It's a legal maneuver that will be challenged both in another legal arena and in the court of public opinion It will not be meaningfully challenged in the court of public opinion, which is completely irrelevant to judicial decisions. If it'll be challenged in an appellate court.... why not limit decisions blocking the democratically elected legislature to a full appeals court of 15 judges, as opposed to just 1? One party can always find 1 extremely ideological 'judge' in East Texas to enjoin the entire country. >These are the social frameworks that exist to protect against arbitrary bad actors and they matter.... Everyone can agree that judges need some leeway in making decisions that are in the best public interest I do not agree, and you are not considering that the judges themselves may be making ideological policy decisions as opposed to 'the best public interest'. It may interest you to learn that several other developed countries do not have judicial review whatsoever- whatever the legislature passes is the law, full stop. (In Netherlands that's literally in their constitution!) https://en.wikipedia.org/wiki/Parliamentary_sovereignty https://en.wikipedia.org/wiki/Parliamentary_sovereignty
  - ROTMetro 3y ago
    Our court system is already constitutionally violatingly too slow (but we overlook it because who cares about the constitution nowadays) but yes lets change cases to have 15 judges that ought to be a workable solution. Or wait, we can have an appeals court (that normally has three judges hear an appeal) that though slow at least moves. I can't imagine if the courts were 15 times slower (because the judges were all on one case). I can't imagine every po-dunk jurisdiction that can barely justify 1 judge having 15.
    - sophacles 3y ago
      > Our court system is already constitutionally violatingly too slow Might be caused by this type of thinking: > I can't imagine every po-dunk jurisdiction that can barely justify 1 judge having 15. Perhaps funding the court system to properly meet your first point would ease your concerns there?
  - Supermancho 3y ago
    > It will not be meaningfully challenged in the court of public opinion, which is completely irrelevant to judicial decisions. Dismissing public opinion because you do not see a direct mechanism to affect change, is a misunderstanding of the inherent social power of Democracy. It is not irrelevant at all. Democracy is about policy being affected by public opinion through representation. A mechanism that doesn't suit an agenda in the short term is not toothless, just less swift than someone who is raging against a perceived injustice. The concepts surrounding judicial review is taught in US high schools consistently. Even in the smallest of schools the hand wavy basics are described as: 1. congress makes laws 2. judicial interprets laws 3. executive enacts laws > I do not agree, and you are not considering that the judges themselves may be making ideological policy decisions as opposed to 'the best public interest'. Let's just dispense with the 'gotcha' retorts. Ofc I consider this. Judges are people and they have values that tend to align with their communities. The pessimistic view that they should all be considered bad actors is at odds with reality, as I know it. > It may interest you to learn that several other developed countries do not have judicial review whatsoever- whatever the legislature passes is the law, full stop. (In Netherlands that's literally in their constitution!) There will always have to be interpretation. Language (be it English or Dutch) is imperfect. Worse, it gets less precise as ideas become referential. The US and Netherlands are never going to use identical legal frameworks. Wishing that things were different has no utility for any possible future. Only the breakup of the US into another set of social contracts will proceed a change of that magnitude.
ROTMetro 3y ago
And that is why we have a balance. The legislature can change the law to be more explicit if they don't like the judicial interpretation. Our system ONLY works if judges have this power.
- hash872 3y ago
  Respectfully, all 3 of these sentences are wrong. We do not have a 'balance' presently- the judiciary gets the final word in every situation. Your second sentence is inexplicable- literally no matter what laws the legislature passes, the judiciary can strike them down as 'unconstitutional'. Which is a completely vague term with no real definition. To answer your other response to me- the German judiciary works much faster with government actions, no reason the American one can't do the same. A lone judge could simply refer possible constitutional violations to the appellate court, which is totally free to issue an emergency declaration while it ponders the issue- courts do that every day
  - sophacles 3y ago
    You keep saying the judciary gets the final word... but that's not right, no matter how often you repeat it. The judiciary gets the penultimate word. The constitution can be changed, there's an entire procedure for it, perhaps you should propose an amendment.
    - hash872 3y ago
      The US famously has the most difficult-to-alter constitution of any country. There's about 200 countries globally, political scientists generally agree we have the single most-difficult to change one. So sure, it's 'possible' in the same way that I could potentially make an NBA team, sure
      - sophacles 3y ago
        Any of the changes you're wishing for and proposing require a change to the constitution though, or worse. Are you suggesting that we should just jump to a straight revolution/civil war rather than try the existing process or changing the wierd cult-like culture that exists around the constitution? How can you know that the same cultish behavior around what the constitution says won't stick around with something new?
Aachen 3y ago
I used to wonder about that as well, but note that the ruling is based on democratically put-in-place legislation. If there weren't a solid basis, you take it to a higher court and get it overturned, or go to your representative and have a different law be democratically put in place Judges apply laws, they don't cook them up fresh

Supermancho 3y ago

> At a minimum it should take a supermajority of a panel of judges to find a law 'unconstitutional'. Legal or moral correctness, is not usually limited to a single judicial decision. When it is, it's remarkable enough that we learn about it early in schooling. Just because a Judge ruled to strike down a law, does not impact democracy in any way. It's a legal maneuver that will be challenged both in another legal arena and in the court of public opinion. These are the social frameworks that exist to protect against arbitrary bad actors and they matter, regardless if you think it's "OK" in isolation or not. Everyone can agree that judges need some leeway in making decisions that are in the best public interest, regardless of the letter of the law...re: misspellings, grammar issues, ill-intent, etc. I happen to be a statist and think that the mere challenge to Federal Policy should not be discounted, because of futility. It's important to challenge governance from a distance, even today.

hash872 3y ago
>It's a legal maneuver that will be challenged both in another legal arena and in the court of public opinion It will not be meaningfully challenged in the court of public opinion, which is completely irrelevant to judicial decisions. If it'll be challenged in an appellate court.... why not limit decisions blocking the democratically elected legislature to a full appeals court of 15 judges, as opposed to just 1? One party can always find 1 extremely ideological 'judge' in East Texas to enjoin the entire country. >These are the social frameworks that exist to protect against arbitrary bad actors and they matter.... Everyone can agree that judges need some leeway in making decisions that are in the best public interest I do not agree, and you are not considering that the judges themselves may be making ideological policy decisions as opposed to 'the best public interest'. It may interest you to learn that several other developed countries do not have judicial review whatsoever- whatever the legislature passes is the law, full stop. (In Netherlands that's literally in their constitution!) https://en.wikipedia.org/wiki/Parliamentary_sovereignty https://en.wikipedia.org/wiki/Parliamentary_sovereignty
- ROTMetro 3y ago
  Our court system is already constitutionally violatingly too slow (but we overlook it because who cares about the constitution nowadays) but yes lets change cases to have 15 judges that ought to be a workable solution. Or wait, we can have an appeals court (that normally has three judges hear an appeal) that though slow at least moves. I can't imagine if the courts were 15 times slower (because the judges were all on one case). I can't imagine every po-dunk jurisdiction that can barely justify 1 judge having 15.
  - sophacles 3y ago
    > Our court system is already constitutionally violatingly too slow Might be caused by this type of thinking: > I can't imagine every po-dunk jurisdiction that can barely justify 1 judge having 15. Perhaps funding the court system to properly meet your first point would ease your concerns there?
- Supermancho 3y ago
  > It will not be meaningfully challenged in the court of public opinion, which is completely irrelevant to judicial decisions. Dismissing public opinion because you do not see a direct mechanism to affect change, is a misunderstanding of the inherent social power of Democracy. It is not irrelevant at all. Democracy is about policy being affected by public opinion through representation. A mechanism that doesn't suit an agenda in the short term is not toothless, just less swift than someone who is raging against a perceived injustice. The concepts surrounding judicial review is taught in US high schools consistently. Even in the smallest of schools the hand wavy basics are described as: 1. congress makes laws 2. judicial interprets laws 3. executive enacts laws > I do not agree, and you are not considering that the judges themselves may be making ideological policy decisions as opposed to 'the best public interest'. Let's just dispense with the 'gotcha' retorts. Ofc I consider this. Judges are people and they have values that tend to align with their communities. The pessimistic view that they should all be considered bad actors is at odds with reality, as I know it. > It may interest you to learn that several other developed countries do not have judicial review whatsoever- whatever the legislature passes is the law, full stop. (In Netherlands that's literally in their constitution!) There will always have to be interpretation. Language (be it English or Dutch) is imperfect. Worse, it gets less precise as ideas become referential. The US and Netherlands are never going to use identical legal frameworks. Wishing that things were different has no utility for any possible future. Only the breakup of the US into another set of social contracts will proceed a change of that magnitude.

ROTMetro 3y ago

And that is why we have a balance. The legislature can change the law to be more explicit if they don't like the judicial interpretation. Our system ONLY works if judges have this power.

hash872 3y ago
Respectfully, all 3 of these sentences are wrong. We do not have a 'balance' presently- the judiciary gets the final word in every situation. Your second sentence is inexplicable- literally no matter what laws the legislature passes, the judiciary can strike them down as 'unconstitutional'. Which is a completely vague term with no real definition. To answer your other response to me- the German judiciary works much faster with government actions, no reason the American one can't do the same. A lone judge could simply refer possible constitutional violations to the appellate court, which is totally free to issue an emergency declaration while it ponders the issue- courts do that every day
- sophacles 3y ago
  You keep saying the judciary gets the final word... but that's not right, no matter how often you repeat it. The judiciary gets the penultimate word. The constitution can be changed, there's an entire procedure for it, perhaps you should propose an amendment.
  - hash872 3y ago
    The US famously has the most difficult-to-alter constitution of any country. There's about 200 countries globally, political scientists generally agree we have the single most-difficult to change one. So sure, it's 'possible' in the same way that I could potentially make an NBA team, sure
    - sophacles 3y ago
      Any of the changes you're wishing for and proposing require a change to the constitution though, or worse. Are you suggesting that we should just jump to a straight revolution/civil war rather than try the existing process or changing the wierd cult-like culture that exists around the constitution? How can you know that the same cultish behavior around what the constitution says won't stick around with something new?

Aachen 3y ago

I used to wonder about that as well, but note that the ruling is based on democratically put-in-place legislation. If there weren't a solid basis, you take it to a higher court and get it overturned, or go to your representative and have a different law be democratically put in place Judges apply laws, they don't cook them up fresh