I found myself returning to this question at the very end of our Courts, Rights, and Liberties unit. What is the purpose of the courts? How do they function so differently from other two branches of the government? Why is their work done in such a quiet and private way? How is it their actions, while few (relatively) have such epic impact on the US? Essentially, it has to do with the difference between politics and governance; majority rule, minority rights; and the rule of law. Examining the definition of the two is a great way to start. Majority Rule: Politics and Governance I view politics as loud, chaotic, public, full of discord, acrimony, and debate. And hopefully, compromise. pol·i·tics [pol-i-tiks] Politics is the work of Congress and the executive branch. Politics starts with the democratic election process, where the people are given a voice and a choice. Debate ensues on major policy topics, and essentially never truly ends. Elected representatives in both Congress and the President vie for grassroots support, using their respective bully pulpits and random assortment of formal (messaging power, presentment power, oversight function, expressed and implied powers) and informal powers (roles of the parties, access to the media, influence and intrigue from special interest... right there tying into all of the linkage institutions) to work within the rule of law (but not always good ethics!) to get policy written into law. And once it's there, the bureaucracy gets to mold the finer details to the liking of the President... and sometimes, for really sensitive issues (like monetary policy) not to the liking of the President, or even Congress. It's labor intensive; it takes time; it's also full of intrigue and power play. It's almost always in favor of the majority. It has to be. In order for policy to be crafted and passed, a coalition is necessary. There must be more willing than not. And here is where the minority gets trampled. gov·ern·ance [guhv-er-nuhns] Governance is quiet, plodding, rote, mechanical, and prescribed. (At least the majority of the time here in the U.S.) Once the regulations have been written by the more political agencies of the executive branch, the act of carrying out that law becomes pedestrian. It rarely receives much play in the media, unless someone is acting unethical. And it remains intertwined with the majority. Minority RightsLook at the courts, and one finds a branch that is so dissimilar from the other, more political branches that one could say it is anti-democratic. The courts are more into governance (ruling over issues constitutional and intrusive on minority rights...) than politics. When the courts take on cases where justiciability is questionable... where the justices ask, "Do we have the authority to hear this case on its face? Is it too political, and best left to the other two branches to take action on?" you will find this cry to leave politics out of the Court. Leave it out of the secluded and isolated realm of the courts, in the private study of the nine justices where not even clerks are allowed to hear debate. Consider Scalia's outburst in Webster, ridiculing O'Connor et al for even giving the issue of abortion an ear, let alone a decision. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us-their unelected and life-tenured judges who have been awarded these extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will-to follow the popular will. The Courts are anti-democratic. They are intentionally anti-democratic. How else can the minority be given a day in court? To have a stable, life-appointed court of nine who are politically untouchable... ( see the precedent of Justice Samuel Chase's impeachment) Despite TJ's dislike of a life-tenure, the "inability" of Congress to impeach a Justice for their decisions carves out a sacred space that enables cultural change to take root despite political insurgencies in Congress... it affords (in theory, especially through the Warren Court) the minority their day in court and a fighting chance.
We talked about evidence of the anti-democratic structure formally and informally: Formal
Informal
While the list goes on, we established that the structure and operation of the SCOTUS as it is, is a good thing. The Courts are working for minority rights. Remove any of these procedural or structural components, and the nasty cacophony of majority rule starts to break up the pristine silence of contemplation for the minority. Maybe this is why the Supreme Court is the favorite of the three branches. And here is the final question I posed to my kids... one that I can't honestly answer myself. What kinds of cases should the Court be hearing? Do we look to them to break up the legislative stalemate over gay marriage? There is precedent in that... look to Loving and the recent Windsor cases... Do we look for a return to the original precedent on gun ownership, or do we stick with the evolution of McDonald and Heller? What about government surveillance and the constitutionality of FISA courts, which was thrown out in Clapper v Amnesty International? My favorite issue is the logjam over climate change, which is being challenged in a class action lawsuit (Alec L v Jackson) in the lower courts by a group of four civically-minded teenagers. There are great cases, but here is the problem. Are these causes willing to have a minority (arguably, an oligarchy) make a decision on potentially political questions that will not have a broad base of support? It is hard for a minority to tell the majority what to do... the majority will continue to fight tooth and nail to change... So, that case better be really, really important... enough to justify the political turmoil that will happen as a result.
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12/3/2016 11:52:39 am
A debt of gratitude is in order for giving late reports with respect to the worry, I anticipate read more.
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Jen's bookshelf: nerdcation
I want to start by thanking Mr. Snowden and Mr. Greenwald for their uncompromising dedication to giving the NSA violations air time and transparency.
I wanted to share some of the most important things I have learned from this book bef...
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nerdcation
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nerdcation and to-read
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nerdcation and to-read
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nerdcation and to-read
AuthorI lovgov. LOVE IT! I love teaching government, learning about it, debating, discussing, asking questions about government. And not the standard boiler plate questions, but the hard ones that are NOT in the books. Archives
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