> So many major policies, from abortion to the role of religion in the public sphere are decided in America by unelected judges, whereas Europe for the most part manages to pass legislation on the same issues through democratic consensus.

I’m not sure that’s entirety true. It is true that the US tends to act on courts alone more often; that is, it doesn’t bother legislating at all. But a lot of civil rights issues in many European countries originate in the courts; the government acts when it realises the courts are going to do something. This is particularly true of the ECHR.

In general, the judicial branch can't quite make new law, but they can throw out (in whole or in part) or place limitations on an existing law. (There's some nuance to that.) That seems like a relevant distinction to draw, as it's an intentional aspect of the checks and balances between branches of government.

This isn’t true. In common-law jurisdictions, making new law is the primary role of appeals courts.

It's definitely not the primary role. It's principally a consequence of stare decisis. And even though stare decisis is the defining characteristic of the common law, in actuality many other jurisdictions apply the principle, including in Europe, just without formalizing it. The promotion of consistency is a nearly universal characteristic of all human legal systems, and stare decisis is consistency reified. [1]

In terms of the exercise of de facto law making powers the United States is somewhat of an outlier owing to the fact it was one of the first to explore how to apply the principles of 1) separation of powers and 2) to do so in the context of a Federal system. Also, the concept of Parliamentary Supremacy solidified in England after the American colonial legal system had begun to evolve on its own. So for these reasons it's unsurprising we ended up diverging from England, and that other former British colonies didn't end up with lawmaking powers quite as extensive as in the U.S. Similarly, it's unsurprising that the evolution of European Union legal rules arguably mirror much of what happened in the U.S.--de facto application of stare decisis, de facto judicial review powers of top EU courts, etc.

[1] Here's an interesting 1988 law review article that includes an exploration of the legal system of revolutionary France: "Tort Liability in France for the Act of Things: A Study of Judicial Lawmaking", https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?artic... The French so despised the practice of judicial lawmaking that they made it a criminal offense for judges to disambiguate the law, mandating that courts instead refer any legislative ambiguities to the Congress for interpretation. Guess how often that happened. So if you start from the premise that an intrinsic function of the courts is disambiguation, and combine it with the principle of consistent application of the law, guess where you end up. See also "Why Europe Rejected American Judicial Review and Why It May Not Matter", https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti...

This is fascinating thank you.

Not sure I agree with your assessment of the questions asked. Question 3 is related to if the governor should rule by executive order if the opposing party doesn't cooperate. This is pretty much exactly what you're saying in your second sentence, just with executive orders instead of courts (bypassing the normal law process vs. monopolizing it). Question 4 is then about ignoring unfavorable court rulings, which again is pretty close to the undemocratic things you're referring to.

The executive is at least elected, while the courts are not, even indirectly. More importantly, in recent decades one part has more often obtained what it wanted through the courts, another through executive order. Having them both as examples of undemocratic, would have made the questions more nonpartisan. As written, it seems pretty clearly written from a left-of-center position.

If the study questions had been written during FDR's time, when the courts were striking down parts of the New Deal and FDR was expanding the powers of the executive in order to expand the social welfare net, we likely would see different questions used as examples of undemocratic behavior.

In recentish times the courts have been striking down parts of Obamacare, gun control and campaign finance legislation too, though.

So judges. Just judges. Judges deal with things that haven't been specifically legislated. You're saying judges are antidemocratic because we don't vote on their decisions.

This applies equally to any individual's choice, then, I suppose.

Comparing Australia to the US, the difference is that in the US what happens is that the Supreme court rules on a law, and the ruling directs how the government implements the law for the next 50 years.

In Australia the High court makes a ruling then legislation is put into the next legislative session to 'fix up' the issue with the existing law. Although this doesn't always happen, it seems to be the most common outcome.

There needs to be a distinction here between SCOTUS rulings on constitutional issues versus rulings based on statute.

Many if not most of the decisions that the Supreme Court hands down could be changed by the legislature. These are based on interpreting statute. For example, recently the court unanimously overturned the conviction of two New Jersey officials who were involved in a scandal involving shutting down an interstate bridge for political revenge. The majority opinion, that again was unanimously agreed to, went out of its way to say that their acts were reprehensible. But the statute that was used to charge them didn’t cover their acts. This is something that can be changed by the legislature easily and there’s no issue at all.

The issue comes with the constitutional ones. These get the most press and tend to be the ones that are most controversial. But the alternatives aren’t much better. Besides the historic reasons for SCOTUS supremacy in this area starting with Marbury v. Madison, there are legitimate concerns with having the interpretation of your constitution being subject to the whims of the most recently elected body.

Of course, this has led to the current nightmare where Supreme Court seats are hotly divisive contests to be won. Changing the makeup of the court is a battlefield and for the life of me I cannot see a way to fix that. Changing the number of justices or setting term limits will be seen as court packing by whichever party attempts it. It might result in open rebellion. Things are very fragile here and we are teetering on the edge.

Yeah my gut feeling is that the relative balance is important to people, but I understand that if one party wins 2 or 3 elections in a row and there happens to be a lot of vacancies, they could swing the court heavily to the right or to the left. And since game theory dictates that you don't know when you'll have the presidency again, you can't nominate centrists to please the crowd you may find the court packed with your opponents + centrists...which means it leans to your opponents.

Reminds me of the time a court ruling made hard drugs legal in Ireland. The legislature fixed the law in a matter of hours.

https://www.independent.co.uk/news/world/europe/ireland-just...

That wasn’t on a constitutional issue, though. In 1992, the Irish Supreme Court found that there was a right to abortion where a person was suicidal (at the time abortion was generally illegal in Ireland), on a constitutional basis. The government attempted to amend the constitution by referendum to remove this, but that failed.

There is no reason the US government couldn't function in this manner in principle, but the lawmaking process is deliberately glacial and easy to disrupt. It is fairly difficult to repeal or modernize lawns in general, it's not a feature unique to court decisions. The SCOTUS usually rules on issues of federal law, which requires the majority of the House, 60% of the Senate, and either the President or sizable majorities of the other two to be on board with revising. When SCOTUS rules on constitutional law the bar is absurdly high, 75% of states. In niche scenarios as little as 2% of the population of the country can block a constitutional amendment.

https://lawliberty.org/scalia-and-ginsburg-on-constitutional...

>and the ruling directs how the government implements the law for the next 50 years.

The legislature and executive could pass a new law the same day as the ruling (well, maybe not if the new law required a constitutional amendment) if they really needed to and there was sufficient political will. In practice what you see is that the judicial branch only weighs in on controversial issues where there tends to be a pretty even split so it takes a long time for things to change enough for side to build the political will to get law passed to overturn the judicial precedent.

Congress has the power to enact new laws to replace rulings they fundamentally disagree with. It feels like the only difference is what happens when the legislature is too divided to do anything.

> Congress has the power to enact new laws to replace rulings they fundamentally disagree with.

Not if it's a ruling regarding the Constitution, which very many of the interesting ones are, they don't. A supermajority of Congress can propose, but not enact, a change in that case.

That's how the US system is supposed to work too. You're just pointing out its failure, not some fundamental difference.

Any individual's choices do not influence the laws of a polity, generally.

first, the US is a representative democracy, not a direct democracy. we don't vote on every little legal precedent. second, judges and the judicial system are a check on executive and legislative power, not a lawmaking body.

please keep partisanship out of such analyses. if your ideas are good, they can stand on their own merits without trying to rally the party faithful (ironic, given the thread title).

I think you are both correct. Judges are not lawmakers but they sometimes come up with completely new interpretations of a law like for example Obergefell v Hodges, or Roe v Wade or citizens united etc. The current Qi is also a Supreme Court construct that has deep practical implications but is not reflected in law.

I think one of the issues is that it is almost impossible to pass any controversial law in the US today, so it is hard for congress to come up with laws when judiciary changes interpretations.

This is also why we have presidential orders.

Is there any direct democracy in the world? Maybe Swiss cantons? The default is a constitutional representative democracy. It's sort of a non-clarification because that's exactly what everyone is talking about when they say democracy.

He's absolutely correct that American courts are, in actuality, through the precedent system and novel interpretation of law around cases, a defacto legislative body. They're sort of like a House of Lords. Examples are Schenk v US and Roe v Wade.

Overall, I think this has been effective in practice in the US, but it isn't quite in the spirit of the judiciary as you describe it.

direct democracies weren't practical at the scale of a nation until relatively recently, but yes, many smaller governmental bodies can and have been direct.

but no, the judiciary is not a legislative body (nor is the executive). it curbs legislative power through interpretation (as does the executive), as is their charge, and therefore has influence and power at the margins, not in the wholesale creation of laws. it's more influential in the negative--striking down unconstitutional laws wholesale. that's not the same as a legislative body.

besides, representative democracy centers around the legislature, not the judiciary. talking about an undemocratic judiciary was just a contrivance for partisanship.

The judiciary is not a legislative body. I don't think anyone is claiming it is. But it acts, in practice, often as a legislative body. Certainly any application of judicial activism is indistinguishable from legislation due to the use of judicial precedence, i.e. it is parallel law-making.

For what it's worth, the nature of the judiciary appointed by representatives chosen by voters is just slow representative democracy. It is no surprise that, given the ability to make a law-like, appointed in a manner that is representative-like, they act lawmaker-like.

They are, in their activism, isomorphic to lawmakers. That's what judicial activism is. In a POSIWID sense, the judiciary are lawmakers, no matter what you call them, like North Korea is a dictatorship despite being called a Democratic People's Republic.

no, you're trying to stretch concepts past the breaking point to fit a desired narrative.

the judiciary isn't a parallel lawmaking body. the legislation has corrective oversight of judiciary interpretation (outside of consitutional issues). that the legislature only exercises their oversight selectively inconsistent to your wishes is not a judicial issue.

also, "judicial activism" is a loaded term. the judiciary is doing exactly and only what it's tasked to do--interpret law against the backdrop of the constitition; it's not a bug if you disagree with its decisions.

I don't. I love it's decisions, I'm glad they made them, and I said as much, but that doesn't change that they're making law.

Their point is that judges sometimes rule on cases beyond what the law explicitly states. Gay marriage was one such case. Abortion another. I would argue the Eminent Domain (for private construction, to eliminate blight) ruling from a few years ago was also another example of judges ruling beyond the law.

Their rulings create de facto laws or regulations many times beyond the letter of the law. I don't think it's right but whether you agree with the Supreme Court's position is often dependent on your political leaning in that particular case, even if the ruling does go against the letter of the law.

That happens in Europe too. Homosexuality was legalised in Ireland as the result of a decision by the ECHR, for instance. Irish people also got the right to travel for an abortion via the Supreme Court (though legalisation of abortion in Ireland was via referendum).

I don’t think it’s possible to have a democracy where the courts can’t change things in this way; the law never covers everything.

> I don’t think it’s possible to have a democracy where the courts can’t change things in this way; the law never covers everything.

That’s an odd way to put it. In Ireland, for example, the law does “cover” abortion: both before, when people wanted it to be illegal, and now, when they decided it should be legal. In both cases democracy (rather than courts) decided what the law should be.

Well said.

Founders deeply distrusted democracy. Government in general, which is why system is setup to be so inefficient at change

The Founders deeply distrusted democracy, but loved big government. That's why they built the ability in for constituent governing bodies to construct and maintain a state apparatus for the totalitarian control of a mass slave population. Moreover, they built into the Constitution the ability for the federal government to assist in the operation of that apparatus.

Although technically true for the US, many states such as California meet most tenets of direct democracy including citizen initiated legislation and constitutional amendments. It's a big deal when you take into consideration the limits placed on the federal government by the 10th amendment.

In a common law jurisdiction the law is made up of constitutional law, statutory law (primary), regulatory law (secondary), and common law (case law) derived from precedent set in the courts. It is a lawmaking body though not of primary or secondary legislation.

there shouldn't even be parties. there are meant to be representatives of areas of people, who come together, not representatives of parties.

absolutely. unfortunately the dynamics of our election and political systems has a tendency to degenerate to 2-party power sharing. we need systemic changes that counteract consolidations of power, of representative institutions relative to the represented. for instance, we could cap the number of people a house member could represent to 100,000, and have 3300 representatives instead of 438. it's harder to game 3300 representatives. similarly, we could give each state 100 senators. with modern technology, the practicality of that is no longer a problem. it would be hugely unpopular among the political class however.

They also forgot to mention a huge one - supports suppressing the political speech of your opponents. Both parties are guilty of this, but the Left is outright determined to regulate speech, shut down the sharing of information they consider dangerous, or deem hateful.

Also the paper might want to examine the executive branch leaders of each party to see who actually, consistently legislates or attempts to legislate through executive order (hint, it isn't Republicans).

The current president has issued more executive orders than the previous... care to elaborate or support your claim?

Wikipedia says that's not true. And he's really about on track to match his contemporary predecessors. According to the table, he's issued substantially fewer than every president before him until you get has far back as Benjamin Harrison.

https://en.m.wikipedia.org/wiki/Executive_order