> 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.

Yeah, that's pretty much it exactly.

> 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.

The people's will is also reflected in an executive branch, of course. Since our executive is (more or less) directly elected by the people, he tends to be more responsive to the people than a parliamentary system where the PM and Government are appointed by the legislature.

In the United States, the Constitution only specifically empowers the courts to resolve "cases and controversies." This was taken to mean, early on, that they must have the ability "to say what the law is" and interpret the Constitution, but the role as defender of rights of minorities is something that didn't really develop until the 20th Century. For instance, I believe that between 1803 and about 1850, the Supreme Court didn't strike down a single act of Congress.

You seem to make the concession readily that we *need* unelected officials to protect minorities. What about other methods? If you read Madison, he seemed to think the only real way to protect minorites was a system of checks and balances, in which power is greatly diffused over different branches of government and over wide geographic and demographic areas.

Many countries get by without allowing their courts to strike down laws. In the Netherlands, for instance, the high court cannot exercise judicial review over legislative acts. And yet the Dutch have some of the strongest personal liberty and privacy laws -- things generally thought of as protecting minorities -- in the world. In part that's due to the Dutch culture, but also in part it's due to a very proportional representation system that forces different parties to work together in strange coalitions. I'm not convinced courts are the only way to protect minorities, and if we're going to give considerable power to institutions that are exceptions to democratic principles, we should be careful in doing so.

> 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.

But judges change their opinions and methods over time. Furthermore, Saying a bad decision is "just too bad" is a pretty strange thing in a democracy. What is the point of democracy? Why don't we just pick smart people and let them control all future political appointments? Then we wouldn't have to worry about the tyranny of the majority at all. But I suspect that being tyrannized by a minority is no better.

> 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.

This is, from an American perspective, a pretty radical thing. The Constitution says courts resolve disputes. They don't have the power to make laws and they don't have the power to enforce even their own rulings (with a few exceptions such as bench warrants for contempt of court).

If courts are able to get creative, is there any particular limit to their power? Can they do things the law does not authorize them to do in order to reach conclusions that are good?

> 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.

That was what the court felt, that doing anything else would just waste time. The court in question said it was complying with the Supreme Court's mandate that desegregation happen "with all deliberate speed" and so was justified in going to that unprecented step of actually ordering the jurisdiction impose a tax.

Stephen