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Supreme Courts Exist To Protect Us From Democracy

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Something of a pity that The Guardian doesn’t quite get it. Supreme Courts – as with rights and constitutions – exist to protect us from democracy. This isn’t a side effect, is not some strange or unwanted perversion, this is the point.

So, of course, an editor should have returned this manuscript with a scribble of “Idiot!” in the margin.

The US supreme court has become a threat to democracy. Here’s how we fix it
Sabeel Rahman

Yes, that’s what a supreme court is for.

Second, courts today are a threat to democracy because of how they have been weaponized to skew political power and insulate extreme conservative coalitions from democratic accountability.

Democracy may be against extreme conservative coalitions at present but it’s still true that such a court is there to preserve all of us.

To take an actual historical example, the Jim Crow laws were just fine by the majority of the electors in places where they applied. That’s democracy. Sure, it took rather too much time for the Supreme Court to disagree but that disagreement was, in the end, that democracy was subject to, limited by, something more important, rights.

Our history is full of moments where courts have been weaponized to resist democracy – and where court reform has been needed to usher in a more equitable and inclusive democracy.

Still missing that the courts are there to limit, not expand, democracy. Because it’s really rather easy to get the mob to vote for something. The Nazis did come to power through electoral politics. FDR was duly elected, his varied New Deal stuff all went through Congress in the prescribed fashion and yet those judges did indeed say, well, y’know, that’s against those rules that this document here says are more important than democracy alone.

Sabeel Rahman is associate professor of law at Brooklyn Law School and the president of Demos, a progressive thinktank

You really would think that someone doing that job would understand that the entire point of constitutions, constitutional courts, is to protect rights from democracy.

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9 COMMENTS

  1. “You really would think that someone doing that job would understand that the entire point of constitutions, constitutional courts, is to protect rights from democracy.”

    No, you wouldn’t. The key details are he’s part of a New York Law School. And ‘President’ of a “progressive” thinktank.

    So you should reasonably expect over-the-top rabid, unsubatsnatiated emotion-based writing, devoid of substance. And there we see it – courts are “weaponised” (doesn’t mean anything in context – but oooo it’s So Bad!).

    Bizarre. How do these people get and keep their jobs?

  2. There must be a check on the tyranny of the majority, but the UK’s Supreme Court’s behaviour (making up law rather than interpreting or enforcing it) suggests that it is not the best mechanism, at least on these shores.

    The context in the USA is somewhat different in that a check to the executive powers of the President, which in many areas exceed those wielded by a British Prime Minister, is needed. A system that combines the role of head of the executive and head of state necessitates robust safe guards beyond that which Capitol Hill can provide, especially as the powers of individual US States have been successively eroded since the 1860s, the only mechanism in the USA is it seems the Supreme Court.

    Yet one suspects that if the Supreme Court was comprised solely of what today are ill-named as liberals, the Guardian and fellow travellers would have no complaints about the power of the court whatsoever. Their partisanship, dressed up as principled argument, is so transparent that it can clearly be seen even by the most politically myopic. It ever was thus.

    • The US system is finely suited with co-equal parts of the federal government. A problem has arisen with the legislative branch ceding, whether willfully or by neglect, much of its responsibilities to the executive branch. The executive has taken advantage of the legislature’s weakness in defending its turf. The situation gets muddled. The parties resort to settling differences in the judicial branch. The supreme court thus becomes the wielder of both legislative and executive powers as it allocates to itself the right to make political decisions. The Democrats now see packing the court as the road to everlasting power. (All was hunky-dory for the many decades liberals had a majority on the court).

  3. Thank you Tim for your defense of the American way of life.

    I am in my 70’s and thus learned civics and history back in the 50’s and early 60’s when their was very little if any fake news. May I make a few points which people should be aware of.

    We are a republic, not a democracy. This was done on purpose by our founding fathers. Going back to the early settlements before we became a great nation, people migrated from Europe to avoid the tyranny of control by the majority. Thus our system of checks and balances through 3 branches of govt were set up in the 1700’s to avoid tyranny of the majority. That people are supposed to work together, thus the checks and balances, so that we may all be able to live in harmony and not under the thumb of “the enlightened.” The unfortunate ideas of the progressive far left people of have Washington DC and Puerto Rico become states so the left can have more members in the house and senate voting the progressive way or expand the supreme court to 13 and put 4 more ‘activist’ judges on the bench, flies in the face of what the founding fathers envisioned and set in motion,

    We can only do this by electing people who want harmony within their own states and also throughout the country. If the voting public would ever understand the significance of so doing, our country will again be great in all aspects of life. After all there are still millions of people annually trying to migrate to America and away from the tyrannies of the their own homeland.

    Final point. Up to 2009 when Senator Ted Kennedy died, we had bipartisanship in our country. It seems to have died when he did. Many time you could read in the papers or see on the internet where Kennedy and President Bush had worked out details on legislation for all americans to gain benefits. Same with President Reagan and House Speaker Tip O’Neill, also from Massachusetts. May I recommend that the leaders of our country work to re-establish to bipartisanship which has worked well for us these past almost 250 years.

  4. As others have mentioned the USA was never constructed as a democracy, and anyway no one except eccentrics supports democracy, ie sortition. Everyone who claims to support democracy actually supports oligarchy, ie elections.
    Democracy is subject to the madness&wisdom of the crowd, whilst oligarchy is subject to the madness&wisdom of the elite bubble.
    WRT to bipartisanship, does any wonder if it would be possible to re-form the democratic republican party, with the centrists, and eject the ideologues to smaller social democracts and christian conservatives?

  5. I have nothing to add to this excellent post or the also excellent comments, I have to admit I have never thought about this topic from this angle. Lately I have found many interesting topics to read on Expunct, and hope to do so in the future, hence I will proceed to make a small donation. Expunct to me seems to be sort of a “thinking-man’s TimWorstall.com”.

  6. Thank goodness the US Supreme Court has just 9 justices. If they went for the EU system there would be 50 justices, and the rules of selection would be one per State, so if one particular place has a strong pool of judicial talent the citizens miss out because you couldn’t have 2 or more from one place.

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