> And it's only that hard to "legislate around" a court ruling when the basis for the ruling is Constitutional. Most USSC rulings probably aren't, so they can be worked around with simple legislation.

Actually they are. Our Supreme Court has nine justices and our country has about 300 million people. The first Supreme Court had seven justices for a country of about 1 million people. Thus the Court has had to become much more selective in what it hears. Since the vast majority of the Supreme Court's cases are at its discretion -- the justices choose what they want to hear -- they tend to limit their caseload mainly to constitutional questions. It's pretty rare for the SCOTUS to go back and reopen the facts of a case, for instance. Almost everything it hears has gone through at least one federal court and one federal appeals court.

Of course it doesn't mean that hearing constitutional questions equates to striking down laws. A defendent in a criminal trial may allege that a prosecutor introduced evidence contrary to his constitutional rights; a decision either way by the Court won't undo the will of the legislature. But it certainly sets a precedent that cannot later be undone by ordinary legislation.

> The Courts aren't really a part of "representative government". They're supposed to be guardians of the Constitution (at least in Canada).

My argument, and this is my bias as a political science student, is that courts are absolutely part of the government and are political actors. There is no doubt that courts -- even in countries where they don't have judicial review over legislative actions -- are involved in creating binding policy. The heart of representative government is that the people's will should be reflected, to some degree, in policy. If you want to say that an independent judiciary is an exception to the general principles of democracy, then I understand. But doing so raises some interesting questions.

> That makes them defenders of the rights of the minority, a position inherently opposed to a democratic government. While it's true that judges are human, I'm not sure we have much of an alternative.

We do. Like I said, almost all of the states in the United States subject their judges to some sort of voter confirmation. I think it's probably a worse mechanism than the lifetime appointment process, but it isn't disastrous (yet, anyway).

> Insulating judges from elections and popular approval helps to de-politicize their job.

In theory, yes. Certainly it makes them less responsive to public pressure and it's going to make them less responsive to pressure from political parties and interest groups. But I again argue that their job is political in nature and that they are humans with political opinions. If they're appointed by politicians, too, you run the risk of a government simply appointing partisan hacks to the bench because they realize it's a good way to shape policy. With a lifetime tenure it's almost impossible to remove those sorts of judges once they get on the bench.

> > [1] Blah blah blah the United States is a republic not a democracy, you're very smart, now shut up.
> >
>
> I thought it was both.

Tangent, but there's no real good definition for either term. Some people have it drilled into them in elementary school that "The United States is not a democracy, it's a republic!" and then like to bring it up whenever they can. I would say a democracy is a government in which the will of the people is the driving force behind policy creation, which is a poor definition off the top of my head. Such a definition would make a republic a special type of democracy. But there's no real point in trying to define them too specifically. The term "representative government" is probably better, but I often talk about "democratic principles" as being important in this country.

> In case you were wondering, all judges in Canada are government-appointed, mostly by the Feds (via independent committee or some such thing), and tenured until the age of 75.

That's probably not a bad method. The only question is who decides who gets to go on the committee?

Currently we're undergoing a huge fight in the Senate over a handful of judicial nominees because Senate Democrats do not have enough votes to stop the nominees, but through Senate rules they are able to prevent a vote from happening. Over the last 20-30 years we've seen an increased amount of partisan fighting from both parties over judicial nominations, even at the Supreme Court, which historically had been fairly non-political. It really calls into question the ability of any political process to appoint supposedly independent judges, and both parties have made it a point to heavily scrutinize potential nominees to find their opinions on specific policy matters.

> Our record of judge selection is pretty good, which makes up for a lot of the "political" concerns. Also, they tend not to rise through the ranks until they've proven themselves, so even the Courts themselves have a layer of review that you can trust. If a judge makes a ridiculous decision, your remedy is an appeal, not getting the judge fired.

Of course you can't appeal once the highest court has ruled. I would have said our record of selection was pretty good up until the last 50 years, when it has become a heated political debate. I am not sure what the long-term consequences of it getting such political scrutiny will be.

> I'm a firm believer that judges should have no accountability except for blatant misconduct directly related to their jobs. I also think that anybody you can't trust with that kind of responsibility shouldn't be named to the bench in the first place. We should balance independence with integrity, not accountability.

So you don't feel accountability to the will of the people is a value for judges at all? Interesting. I certainly think there are lots of cases where it is clear that judges are upholding the rights of minorities, what about cases where they step outside what we'd consider a judge's normal rule to do so?

Let me give you an example: as you probably know, the federal courts ruled in the 1950s that racial segregation of schools was unconstitutional and ordered local school districts to desegregate. There was one specific case in a southern district (I don't have the exact facts of the case at hand but I could look it up if anyone wants) where the district needed money to make it happen, but the local government didn't have any for it. The people in the area refused to raise taxes.

A federal judge ordered a tax be implemented to finance the transition. This is pretty much unprecedented in America, where the power of the purse has always been a power given only to legislatures, which represent most closely the will of the people.

Should an unelected judge who serves for life be allowed to levy local taxes against citizens? There is no doubt that the judge was trying to protect the rights of minorities, but how far should they be allowed to go in order to do so?

Stephen