> > 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.
>

Okay, fair enough. Our Supremes, like yours, can only hear one case at a time, and there's way more litigation to choose from in the US. I know the USSC has to confine its jurisdiction to matters of national importance. I just don't know how many of those are actually Constitutional. Now that I think about it, your Supremes probably get more Constitutional questions than ours, because it's easier to appeal to them from Federal courts, and you get to Federal courts in the first place by framing a Constitutional question.

> > 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.
>

I do want to say that an independent judiciary is an exception to the general principles of democracy. What I originally meant is that courts aren't "representative", not that they're not part of government. You can't have laws without courts. The people's will is only supposed to be reflected in the legislative branch.

> > 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).
>

I meant we don't have an alternative to judges being human. They will inevitably be a product of their experiences, and as such they won't be perfect, logical, unfeeling arbiters and statute-interpreters.

> 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.
>

I always understood that "democracy" means that (all of) the people choose the government. The form of the democracy varies. In ancient Greece (?), they had a direct democracy, where the people voted directly for the laws. In Canada, we have a Parliamentary democracy, where the people choose representatives to send to the legislature, and the majority in the legislature determines the executive. You know what you have.

> > 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?
>

I don't know. Good question. Right now they're trying to introduce some sort of Parliamentary review of Supreme Court nominees. I think that's a step in exactly the wrong direction.

> > 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.

That's why it's generally a good idea to choose higher court judges from among lower court judges who have proven themselves. And then, if you get a decision you don't like, well that's just too bad. Judges are independent for a reason, and not everybody can win.

> 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.
>

This might sound a bit wishy-washy, but I'm not convinced that was outside the Court's jurisdiction. The legislature can make or unmake any law, has spending power, bla bla bla, but those powers still can't be used in a discriminatory way. In that case, you have the added nuance that the legislature was deliberately refusing to comply with a court order. Sometimes courts have to get creative when they're faced with creative forms of discrimination.

> 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?
>

Ordering a tax is a bit extreme. I suppose the Court could have ordered the district to spend the money, and let it decide whether to borrow, tax or cut other programs. I don't know the facts. Maybe the Court felt that if it didn't give specific directions the parties would be back in the same court in three months, with the government still stonewalling.

^v^:)^v^
FB