The people who created the system and decided on lifetime terms for Supreme Court judges had a lot of enthusiasm for democracy, but they could see it had flaws, and they wanted the judiciary to be much less sensitive to the mood of the public than the rest of the system. As disappointed (and angry) as I am to see the Republicans steal the Merrick Garland appointment and then replace RBG with someone who has flaunted her enthusiasm for overturning Roe v Wade, I'm glad Supreme Court justices can't be held politically accountable for their decisions. It means that power ranges from being accountable to the public on very short time scales (legislators in the House) to slightly longer (the president) to pretty darned long (senators) to extremely long (the Supreme Court, which reacts very slowly through presidential appointment after retirement or death.)

The downside to this is people spend decades being ruled by people they didn’t have a chance to vote against.

But the Supreme Court doesn’t make the rules, it just interprets them. The rules are made by elected representatives.

Elected representatives get to try to make rules then the other side can chuck lawsuits at it for a decade trying to overturn it. The power to determine what rules are valid and how those rules are interpreted is a very powerful lever on how the country is run.

That's not how common law systems work. Things like executive privilege, qualified immunity, the fighting words doctrine, are all essentially just made up by judges.

Statutory law over-rides common law, however. If Congress passed a law explicitly overriding any of those, those would cease to exist.

>But the Supreme Court doesn’t make the rules, it just interprets them.

The supreme court literally decides whether X real-world activity is made illegal by Y law. Interpreting the rules is making rules.

They might not be directly elected, but they are political. If they weren't political we wouldn't divide them into liberal and conserative jusices. It seems like everyone already knows how they would 'interpret' any case involving abortion.

This doesn't seem to be such a problem in other countries. I don't really understand if that's because the judges are purposely appointed to be as partisan as possible, or whether the 'rules' are so badly written that they can be interpreted any way you like.

>whether the 'rules' are so badly written that they can be interpreted any way you like.

It's a philosophical difference in legal systems derived from the Napoleonic code (and more indirectly the Roman legal system, so it's common in continental Europe) vs. the English legal system (the US, Canada, India, Australia, etc)

https://en.wikipedia.org/wiki/Common_law#Common_law_legal_sy...

That isn't as big problem as you paint it. Yes, Trump was particularily "lucky" (for the lack of the better word) that during his single term in the office 3 Supreme Justices died, so he could appoint replacements. But Obama, George W. Bush, Clinton, George Bush senior, they each appointed 2 Justices. So it seems to me that the system is deliberately designed to capture long-term political trends - Democratic presidents appoint democratic judges, Repliblicans appoint Republicans, and the net result is: Supreme Court reflects society's deeply ingrained values, not its current mood.

Trump appointed 50% more judges in half the time. So, triple the rate.

And to your second point, the popular vote went Democratic in the last 7 of 9 elections (and electoral in 5 of 9) but 3 of 9 Supreme Court Justices are Democrat appointed. The court does not reflect our deeply ingrained values.

Eventually you have to break out of the mindset where the government is ever for "the people". It's very naive and in practice things have never worked that way.

While I agree with virtually everything you're saying here, I'm not convinced the Founders had a high opinion of democracy itself. The Federalist Papers are full of warnings about mob rule, and the goal of the Constitutional framework was explicitly to insulate government from populist and direct democratic influence, while setting up structures that were supposed to mold the government into the form of an aristocracy (in the sense of Plato's Republic).

The Republic is actually quite prescient in its analysis of forms of government and how they decay from one form to another. The USA today very much resembles an oligarchy (class-based rule by the rich) being pushed rapidly into social media-driven democratic mob rule.

Were we already farther down that path, Trump might have been enough to push us down the hill even farther, from democracy to true tyranny.

What we call oligarchy now and what they called democracy then -- it's the same picture. Re democracy's weaknesses, I think the most important factor was that whatever their radical ideas, they were living in a country that had been born out of a revolution / civil war and were living through the failure of one attempt at creating a country (the Articles of Confederation) so they were primarily concerned with creating a system that could actually work for a while and maintain stability through turbulent times. They were true believers in (what they called) democracy, enough to bet the future of the country on it, but they also believed it had weaknesses, and they did not want to embarrass and discredit it by building a democracy that failed because of something that seemed inherent to democracy itself. That's one reason they were obsessed with its weaknesses. Another other reason is that they had to sell their new system to democracy skeptics. So, they had to convince both themselves and others that their system built around the idea of democracy was designed in a way that guarded against its weaknesses.

It should be noted that the Federalist papers only represent the views of a few of the Federalists (Hamilton, Madison, Jay), i.e. from one of the two major parties. The Democratic-Republicans had a greater distrust of centralized government and were more supportive of democracy and rule by the better of the average Joes (Jefferson's 'yeoman farmers' and all that).

This is quite similar to taking the views of Paul Ryan and Rand Paul and calling them representative of the US government. Those views are not extreme in the context of the time and are shared by a sizeable fraction but it's not a random or representative sample.

> It should be noted that the Federalist papers only represent the views of a few of the Federalists (Hamilton, Madison, Jay), i.e. from one of the two major parties. The Democratic-Republicans had a greater distrust of centralized government and were more supportive of democracy and rule by the better of the average Joes (Jefferson’s ‘yeoman farmers’ and all that).

“Represent the view of” is misleading. The Federalist Papers were not an academic exercise of recording opinions for posterity, they were long form campaign ads for a targeted audience to sell the ratification of the constitution.

Also, the Federalist Papers were written before the formation of the parties, and when that formation did occur, Madison was one of the founding leaders, along with Jefferson, of the Democratic-Republican Party, he wasn’t a Federalist.

> The USA today very much resembles an oligarchy (class-based rule by the rich) being pushed rapidly into social media-driven democratic mob rule.

Agree with the first part, disagree with the second part.

It's going to remain an oligarchy, but the circus of 'mob rule' will be utilized to make sure the oligarchs remain in power.

Regarding judges: How would you appoint them? Basically there are three options:

- Have a public vote, direct legitimation (or via some extra electoral college or something) this means that judges have to be "popular" and run campaigns and question is, if that's really smart ...

- Have the "juristical class" elect within, so judges from lower courts would lick somebody, or current judges elect additional ones. That would put judges into their own "class" and remove all democratic legitimation

- or do what is done and have a democratically elected body do it. In the case of the U.S. it's done by a combination of president (nominating) and Senate (confirming) where the Senate represents the different states.

It is one of the tough problems.

For the pardon the idea comes from absolutist times where a King would pardon as he likes. The modern interpretation comes from correcting "blind" justice. Justice has to rule according to law. But sometimes one either might decide that a law was bad and than a pardon might be a way to correct that (ideally if law is rewritten as well) and sometimes there are hard cases, like the 90 year old who should get a chance to die outside of prison, for sake of family etc.

Generally the system assumes the actors act mostly in good faith and were removed (impeachment etc.) otherwise.

You can also mix-and-match further, and add another layer of indirection.

One method that I've heard of is to have a committee (/"commission"/"council") select judges. The committee composition can draw from multiple branches of government (e.g. some members are existing judges and others are appointed/elected by the executive and/or legislative branches) and from civil society (e.g. appointed/elected by bar associations; in some implementations a majority of the committee is from civil society). The terms of members of the committee can be staggered.

The idea is to make it difficult for any one controversial person or party or movement to consistently dominate the committee, because in order to do so they would need to consistently dominate multiple branches of government and civil society (because the different members of the committee are selected by these different institutions) over a long period of time (because of the staggered terms).

Lifetime appointments are the problem not the method of appointment.

Judges deciding cases based on what the law says, free from fear of political reprisal is the intended feature. Lifetime appointments get you that (or very nearly to it). If you know of a strictly better way to get the same feature, what is it?

America surely does not have such a shortage of well-qualified lawyers that each justice needs to serve for decades. It's certainly not an argument anyone would accept regarding the President. Just have them serve a single long term, and then that's it.

You might lose some expertise, but on the other hand, you don't have the tragic spectacle of Justices dieing in office whilst waiting for a 'safe' time to retire.

The point about having them "serve decades" is to ensure that a single government period isn't enough to swap out all judges. If a new political faction comes into power they can't after a short term replace all judges with whatever the view of the season is, but only when the movement is established over long period will gain those powers with election in between, which can rebalance.

Taking again Germany as my example, since I know it best: There are 16 judges with a period of 12 years. Adding the age limit and other reasons that averages to about 2 elections per year. Thus a bit more than 4 years till a new group can take over the majority. (Now they are elected alternating by the different chambers of parliament, where one of the chambers, Bundesrat, is also slower moving in replacement ... making it hard for a short term movement to take over control and if, impact is relatively short - unless they stay in power long enough to replace all.

> If you know of a strictly better way to get the same feature, what is it?

Let them serve for a limited period of time, say 16 years max. Can't be removed before then. It's not that complicated and would prevent justices who literally sit on the bench until the day they die.

Yes, they are an issue. The idea is to make them independent from future career things etc. and the rule is from a time where people didn't get as old as these days. This makes them independent from the politics of the day.

I think Germany got that better: here we have a 12 year term (thus a single government can't easily swap them out - a learning from the time of 1933) and a max age of 68 (for whatever reason that was picked)

Maximum age is a great idea. Senators like Feinstein and Grassley should honestly be booted and replaced.

Well, the voters don't seem to agree...

Let them serve a 16 year term on the supreme court, and then return them to a lifetime appointment on a circuit court.

If you make it 18 year terms and stagger the appointments (as grandfathered-in justices die or retire) to every 2 years, you can make it so that each presidential term appoints two justices, which at least removes some of the potential for luck to dramatically shift the balance of the court.

If that were the case, and justices' terms started in January of even years (to avoid the election cycle), we would currently have 2 Trump appointees, 4 Obama appointees, and 3 Bush appointees, roughly matching what the balance of the court would be next month if Ginsburg had died 3 months later.

Canada has appointments that last until the judge turns 75. Seems like a better system to me.

See sibling comment https://news.ycombinator.com/item?id=25847810

America: it's not a bug, it's a feature

It's much better to be on an nth + 1 republic, let me tell you.

> the election (and life terms) of Supreme Court judges baffle me

SCOTUS judges are not elected; they are appointed by POTUS, after confirmation by the Senate.

At the state level, only about half the states use elections for their Supreme Court judges. However, the highly-polarized and roughly-evenly-split Midwestern states (MN, WI, MI, OH, PA) are among these, so it definitely will come across as more visible.

If I understand correctly, the lifetime appointment is meant to avoid political pressure. Don't you think the judges might be swayed to vote one way or another if they knew there was a vote coming up in a couple years and they'd be on the chopping block?

Couldn't this be mitigated by making terms a fixed number of years? e.g. UK Supreme Court - No life terms. Justices selected by peers + independent committees. There is one member of the government with a veto that is rarely used and highly scrutinised when it is.

Single 15 year term with a guaranteed pension afterward.

As a foreigner, gerrymandering[0] baffles me. Someone please explain how this makes sense?

[0]https://en.wikipedia.org/wiki/Gerrymandering

Growth hacking.

You might want to look at the electoral vote and how 1 vote in Wyoming accounts as much as roughly 4 votes in Texas and California. Pretty serious bug that is enabling the far right to be over represented imo.

The federal government is the government of the individual states. A state is a sovereign entity. Each vote in the United Nations general assembly is identical regardless of the size of the country voting. Ireland’s vote is just as valuable as India’s. That’s the point of the United States — it’s a republic, not a democracy.

As far as 1 WY vote being worth 4 Texas votes, that’s also irrelevant because the president is elected as president of the republic, not the president of individual people.

That made sense before nearly everything was declared interstate commerce. The federal government now directly affects people on an individual level in a way it did not when the system was originally formed.

If that's the issue then surely it's easier to reverse the judicial precedent than to amend the constitution.

My understanding is the vast majority of Americans are in favour of harmonization at a federal level. In the original days of the USA I think citizens identified more with their state than the country as a whole. Outside of Texas that is no longer the case.

I never went as far as saying the the USA is not a democracy but you did. Goes far behind my point, but that was the direction.

Saying that the president is not a president of the people when people literally vote directly for that person (unlike most of the wester republics) is frankly pretty weak. How can you argue he is not the most influencial political figure in a US citizen life?

The people do not elect the president, that is what all the brouhaha around the Electoral College is about. By convention, each state has agreed that the people vote for who their state is going to vote for - but that is not constitutionally required.

This turns out to be really helpful when someone starts claiming something like widespread voter fraud for instance, because there is no one institution to attack, or even identical set of rules that can be exploited. Each state runs it's elections as it sees fit, and then votes the way it deems necessary - and is strongly interested in making sure it's voice is heard.

The citizens don't vote directly for the president, the electoral college does. Usually the distinction doesn't matter but it does affect outcomes. States have different rules in how their electors vote for the president.

Some states have tied their electoral votes to the national popular vote in the name of increases democracy. It will be interesting to see the first state that has its electoral votes changed due to this. I imagine those residents won't be so thrilled to have their votes go against their will and in favor of how other people in the country voted.

Yes, I am aware of how it works and indeed it would be interesting to see a change in the election laws.

For all practical purposes though, people vote directly for the president (last election is the proof that even a full front effort won't sway the election outcome from the people's votes). The only practical difference is that one single vote has a different weight depending on what state you live in.

Rural areas are incredibly over-represented imo. This should be addressed more than the tiny details that don't really change the outcome.

Just imagine how different the left and right parties would be if the will of the people would be equally represented.

> Rural areas are incredibly over-represented imo. This should be addressed more than the tiny details that don't really change the outcome.

So the most populous cities should have the unopposed power to decide all of the federal policies that could impact the lives of rural people? This sounds like the recipe for a Hunger Games classist uprising.

This is the same as saying your vote counts less than someone with more friends than you.

Might as well just throw out the whole state sovereignty idea which is an option.

Our whole system was based on individual rights and that philosophy extends to states as equal members of the union.

Hmm.. I struggle to understand your logic. Embedded in the concept of Democracy is the fact that there is a rule by which a decision is made and once taken it impacts everyone lives.

Just try to look from the other side of the fence. I can rephrase your question as:

"So the few individuals living in rural areas should have the unopposed power to decide all of the federal policies that could impact the lives of the vast majority of the people in the USA?"

So yes. I am sorry but with a democracy, you sometime lose and have to accept that the decision is different from your preference.

In the US this only applies to federal, how much federal laws should impact states is not really in discussion here (and honestly I have no opinion on the matter. I am originally from Europe and have limited understanding of a lot of states laws and structures).

Also, you are confirming my point that rural areas are over-represented. You seem to intend that it is rightly so, but I do find this criteria unjust, just like your example of voting power coupled with amount of friends is.

To me, the only criteria that I find just is "every person has one vote with the exact same power". It's simple and naïve, but only one I have seen that I consider fair.

Ideas that make sense to people in cities don't always make sense in rural areas. Let's say for an overly simplistic example everyone in a city thinks it's a great idea to tax anyone who lives in a home that has more than 2000 sq ft of living space. In the country _everyone_ meets this criteria so thereforethey are unfairly taxed.

This sounds very weak. It's like saying "Ideas that makes sense to the lower class don't always make sense to the top 1% net-worth people. For example taxing the rich more. For the top 1% net-worth individuals, _everyone_ meets the criteria and therefore they are unfairly taxed".

How you cluster people is irrelevant for a policy to be fair or not. It's petty to chose what gives you an advantage. You should stick to a set of values and agree on policies that better express those values.

So what you're saying is that the opinions of rural people regarding uniquely rural problems don't matter in the context of the nation as a whole.

That is not at all what I am saying (or anyone else afaik).

Understanding and protecting minorities is one of the core values that need to shapes policies.

You can't solve the minority problem by giving them more votes, because you can't give it to all minorities. Everyone is part of somekind of minority.

Today rural people are a minory who has a privilege compared to others.

Wait... I think I misread when I first answered: "Some states have tied their electoral votes to the national popular vote in the name of increases democracy."

Is this a thing? I had no idea. Do you know what states do that ?

See: https://en.m.wikipedia.org/wiki/National_Popular_Vote_Inters...

> The federal government is the government of the individual states.

In that case, why aren't state legislatures or state governors voting for president and members of congress?

They did, originally. But then we passed the 17th amendment due to rampant bribery on the part of state leaders selling senate seats.

Technically, the state legislatures are entirely in control of which electors are sent for the Presidency. It's just that all of them use the popular vote to determine that. They could pass a law that the governor decides who goes, or that the state legislature chooses exactly who. But they don't at this time.

And prior to the 17th, Senator were chosen by the state governments as well.

> But they don't at this time

Presumably because people of those states don't want it that way. Which means they consider the federal government "their" government, not the "government of the state".

> A state is a sovereign entity.

Uh, not fully…

head of state pardons are common even in the rest of the world.

In France, Germany, Greece, and Italy it's also a prerogative of the president, for example.

As an American, I agree with everything you said. (Well, except that Supreme Court justices are appointed, not elected.)

The other gaping flaw is the systemic, undemocratic bias that determines the makeup of our Upper House.

The issue you're referring to with the Senate is, of course, the fact that each state gets two senators, regardless of population. This means that the sparsely populated North Dakota has the same number of senators as California.

This a feature, not a bug, and in fact the United States would not exist without it. The senate prevents small states from being dominated by large states, and is the only reason that smaller states like Rhode Island agreed to join the union in the first place.

If we were to alter this configuration of the Senate, the same question would undoubtedly arise--why should small states like North Dakota, Vermont, and Oklahoma remain in the Union, only to be dictated to by the citizens of Florida, New York and California?

>If we were to alter this configuration of the Senate, the same question would undoubtedly arise--why should small states like North Dakota, Vermont, and Oklahoma remain in the Union, only to be dictated to by the citizens of Florida, New York and California?

I don't know why this is a valid argument, when you can turn it on it's head. Why should states like Florida, Texas, New York and California, who (1) have the most amount of people and (2) generate nearly all economic activity, be dictated by the citizens of North Dakota? Why is it that this argument never considers the inverse?

It's clear, by looking at Federal budget inflows and outflows, that states like North Dakota need California more than California needs them. If States were countries, and if The United States were more like the European Union, Texas would naturally have outsized power, much like Germany. It would be Texas citizens bailing out North Dakota.

Because of the resources those states provide. In almost all cases, resources (food, minerals, oil, energy) flow from those more sparsely populated states to feed, fuel, etc. the more densely populated ones.

If you think NYC could be supported purely by NY state alone (or frankly even just 'Blue' states), you'd be in for a rude shock.

That much of the value add/economic activity happens in the more densely populated states isn't that surprising - but cutting off the midwest from the rest of the United States would cause catastrophic famine in very short order, to name one example.

California produces, by far, the most food of any state, ($50B for California, $27B for #2 Iowa)[1]. Texas produces, by far, the most oil of any state (1.8B barrels vs 512M for North Dakota)[2]. Catastrophic famine? The data doesn't support that assertion at all. Rude shock? I guess I'm more shocked at how much California feeds the nation, but is ruled by sparse smaller states. Your initial claim is so wrong I'm interested where you got it - maybe I'm Googling the wrong information.

[1] https://data.ers.usda.gov/reports.aspx?ID=17844

[2] https://www.statista.com/statistics/714376/crude-oil-product...

Not sure you're supporting the point you think you are, or are addressing my points?

CA's central valley produces fruits, vegetables, and nuts, much of which gets exported, and a bit of, but not a huge amount of staple foods - and if you add up all California's agricultural output, it is still only ~13.5% of the US total. [https://www.cdfa.ca.gov/Statistics/#:~:text=California's%20a....]

The areas in California that produce that food are solid red, through and through. Texas is red, ESPECIALLY the areas that produce that oil - but let's set aside the intra-state conflicts on this. None of the states mentioned are 'ideologically' self sufficient in their needs (CA for Oil, despite being a major food and oil producer, Texas for food - among literally millions of major and minor needs), and NY State or NYC are most decisively not in either category.

[https://www.ers.usda.gov/data-products/chart-gallery/gallery...]

If you look at your own chart, you'll also see that ~90% of all of the remaining entries following California (who make up the bulk of production) would be called midwest, near midwest (definitely not blue), or 'flyover territory'.

If you go to the link you had and filter by staples (as compared to expensive-per-calorie foods like almonds or strawberries), you'll see this reflected even more strongly [https://data.ers.usda.gov/reports.aspx?ID=17844#P7521943176f...]

California has a LOT of people in it. 11% of the nation. While they might not personally feel the brunt of a major famine right away - running out of fuel for the harvesters, or the steel products to repair their equipment, or the equipment itself (predominantly produced in 'red' areas or imported), would mean it wouldn't be that long either.

If we look at the wider context, losing 50%+ of the agricultural products aka inland 'flyover' areas and the midwest would definitely cause catastrophic famine. And that is at least how much is there from your own links.

>Not sure you're supporting the point you think you are, or are addressing my points?

I think you are missing mine; I'm not making a blue/red distinction, I'm making a point about senate representation.

First, you are trying to prove that California, Texas, or New York could not be self sufficient. This is a meaningless point as today states like Wyoming are not self sufficient. I'm sure a state like Texas would figure out self-sufficiency much faster than Wyoming. Why do large states have to give up power to small states given that both would probably be screwed without the other, but small states would be likely screwed even more? The idea that large states must cede representative power in order to access resources is absurd - after all they are already paying them via federal budgets; surely there is no reason to double pay? The "they provide resources" argument is bullshit.

Secondly, coming back to senate representation & electoral power - there are vastly more people in rural California and conservative districts like Bakersfield than there are in Wyoming. Those voters have effectively 0 senate representation. Again, I don't care if they vote red or blue, but Wyoming gets outsized power. Why?

I don't naively believe that once California has more representative power that the whole country would turn into San Francisco. I believe states like Wyoming and other sparsely populated, deep red states, allows the Republican party to effectively ignore their voters in blue states as well. That's the reason the current system is upheld - it allows the GOP to effectively never have to answer to it's voters. It cuts both ways, the current system is bad for Americans; red & blue. There are more registered republicans in California than most other states have people and the state itself was solidly red until 1992; yet those voters don't have much of a voice.

The party affiliations do not matter - the notion that a Wyoming democrat has 4x the voice than a California republican just isn't right.

Ah - the reason being those were the terms the state joined under? If they hadn't, many likely wouldn't and the nation would not be what it is?

Anything else is 'changing the terms', and that is very likely to result in a lot of chaos - since it would be unconstitutional, unless you got 3/4's of the states to go along with it.

Pretty unlikely, since most of the states benefit from this arrangement?

Same reason Bootjack doesn't secede from California just because it doesn't get the same representation as Los Angeles

> This a feature, not a bug

Perhaps. The problem I see is that state boundaries are pretty arbitrary. The real political division is between urban and rural, and whether or not a particular state is 'red' or 'blue' depends on how those boundaries have been created. There are a huge number of rural voters in California that share more with Wyoming rural voters than Wyoming urban voters, so why should they be disenfranchised simply by living within the state of California?

Quick note, no matter how unfair states may think they have it, "remaining in the Union" is not a choice. This isn't the USSR.

Statehood is eternal. Secession is quite literally treason and the Civil war was in that sense constitutionally mandatory.

If the population of a State wants to leave the Union and the Union forcibly prevents them from doing so, then the United States is no different than the Romans, or the British, or the Soviets. They all had their own state documents which declared secession illegal, of course, so perhaps you're comfortable in that company.

>Statehood is eternal.

Is that you, Louis XIV? Spinning yarns about the divine right to rule?

>Secession is quite literally treason...

Says the nation born of treason.

>..and the Civil War was in that sense constitutionally mandatory.

Any institution which is willing and able to kill a million men solely for the purpose of its own preservation is a menace. But as long as it was constitutionally necessary, I guess we're good?

That's a feature, not a bug. I can get behind changing the presidential election to be based on the popular vote, but I don't think I want the Senate to be based on the popular vote given the terrible job done by the CA and TX legislatures.