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.