Democracy and the Judiciary

Friday, February 9, 2007 -- 4:00 PM

Today's episode is about the Judiciary and Democracy.  Our guest will be Larry Kramer,  Dean of the Stanford Law School.   We're really looking forward to having Larry as our guest.   Larry has been an agent of change since coming to Stanford.   It used to be that the law school barely cooperated with the rest of the University.  But under Larry's able leadership many good partnerships are being formed between Law and other arms of the university.  For example,  there are  now joint PhD-JD programs in a number of areas in the university,  including a joint Phd-JD in philosophy.   So all you inspiring Philosopher-Lawyer Kings out there put Stanford on your list of possible places to pursue your dreams.

Anyway,  on to the subject of today's show.   In one way,  it seems obvious that the  court system -- especially   judicial review of the acts of the legislative and executive branches of government -- is, in one way,   a bulwark of our constitutional democracy.   That was a point made clearly and forcefully by a past Dean of the Stanford Law School,  Kathleen Sullivan,  who was our guest on Capitol Hill when we did a show on Separation of Powers.   The court protects  certain minority rights from being trampled by the majority, protects the basic liberty and participatory rights of all,  and checks the excesses of the other branches of government.   That's all well and good and crucial for democratic self-grovernance.

So what's the issue about the courts at all?   Well, surely one issue is that the main means by which we the people can hold our government accountable is through the electoral process.  But judges, by and large,  do not serve at the pleasure of the people  I am not advocating that they should.  Indeed,  I despise judicial elections.   Here in California we have judicial elections for certain judges.  They are usually low key.   You hardly ever see the judges out actively campaigning for office.  Instead on our massive electoral guide,  you get their written statements.   And unless they've somehow been in the news for some other reason,  that's about all you learn about them. Still,  I almost always find their candidate statements repulsive, simple minded things,  designed to pander rather than to inform.    Elected judges become  pandering politician,  even if on a smaller scale.    So I prefer to see judges appointed rather than elected. Unelected is more likely to mean independent, especially where appointments are a joint responsibility and come with lifetime tenure.   

So what's the real problem?  Well, the  decisions of the Courts, especially the Supreme Court, have  had far reaching and often wrenching social consequence in recent and not so recent years.  Over the course of the last fifty years or so,  the Supreme Court has played a major role in the transformation of our social life.   With the stroke of a pen,  it struck down segregation in the schools,  placed severe limits on the regulation of abortion,  greatly altered the way police do their business, severely constrained  the extent to which affirmative action could be used to bring about a more inclusive society -- and on, and on, and on.   Whether you think these decisions were well-decided, from a legal constitutional perspective or not,  you have to admit that they were enormously consequential.  And the consequences were not all good.   

Indeed,  I submit that the courts are to some large measure responsible for the fractious and divided nature of our politics over the last 50 years.     That's because many on the losing side of some of the court's decisions  felt as though their opponents had won through the court system what they had no chance of winning through the political system.   And the losers organized themselves to try to seize the political process to gain back what they thought that had illegitimately loss.

Now I'm not saying  that the court was therefore always wrong to decide as it did or that the losers are right  to try to use the political process to undo what the court did by judicial fiat.   I'm just saying that when the court  is believed by many to have "usurped" the political process on behalf of a set of sectarian interests,   social and political turmoil is all but inevitable.  That isn't necessarily a bad thing.  As I say in this piece,  stability in the service of reaction   is no virtue,  instability in the service of progress  is no vice.   

Still,  I think there is something to the thought  that what the political process CAN decide, it really SHOULD  be left to decide, at least ceteris paribus.   Take the abortion issue.   It seems to me that if the question of abortion had been left entirely to the political process, we would by now have had a long settled and  reasonable compromise.   There would be some restrictions on abortion; these would vary from state to state, but it seems hardly likely that abortion would be flat-out illegal in all circumstances anywhere.    The compromise might not represent an equilibrium point.  We would probably find a certain ebb and flow in the restrictions that states place on abortion as social attitudes and mores evolve.   But what would be missing,  I think, is the current level of intensity and anger that certain parties currently bring to this issue. 

Again,  I'm not suggesting that the  threat of instability is always sufficient reason for the court to forbear deciding an issue.   Sometimes the court needs to, as it were, shake the society up and to serve as the leading edge of social progress.     But I don't think it can be denied that when it does so,  it may have massively destabilizing effects on the political system.   And those destabilizing effects may severely threaten the social progress the court aims to bring about.   No other institution has such a unique combination of powers  to, on the one hand,  effect, for good or ill, the political  process, but, on the other hand, to stand outside the political process, almost entirely unaccountable to the people at large.

Perhaps I'm wrog, but this strikes me as something of a paradox.    What do you think?  Have I missed something?

Comments (5)


Guest's picture

Guest

Sunday, February 11, 2007 -- 4:00 PM

To suggest that "...the courts are to some large m

To suggest that "...the courts are to some large measure(responsible) for ... the fractious and divided nature of our politics over the last 50 years." is an unbelievable statement made by Larry Kramer, Dean of Stanford Lawschool.
And to suggest that "... unelected is more likely to mean independent.." is so non-sensible and almost painful especially if one knows - this is an enormously educated and powerful, his position effects the lives of many individuals, man stating this.
Dean Kramer I am one voter who does not despise elections as you obviously do ".. I despise judicial
elections."
As to the statement ".. I almost always find their candidate statements repulsive, simple minded thing, designed to pander rather than to inform."
Dean Kramer, I read these statements and I find them informative and at times enlightening - eagle scouts,
Sierra Club Membership, church related activities. number of children, etc. combined with judcial decisions made by the individual judges. All this information allows me to make better, if not best decisions in the voting booth.
I believe in the democratic process. The ability of the common people to voice their beliefs and to exercise through their votes a small measure of power.
Indeed, "the court system ... is in one way a bulkwark of our constitutional democracy."
Lets keep it this way.
To appoint judges and "... come with a lifetime tenure." could, in my opinion, lead so easily to a theocracy, or a philosophical dictatorship countering the freedom and rights of Americans.
Sincerely, Rosemarie Neth

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

THE SUPREME COURT DOES NOT EXIST In any

THE SUPREME COURT DOES NOT EXIST
In any judicial system of oversight, some courts will have no oversight power whatsoever, some courts will directly oversee other courts, while perhaps some courts will directly oversee themselves. A complete system of judicial oversight will be such that every court has some court directly overseeing it. Indeed, every complete system will have some court (call it the Supreme Court) which oversees all and only courts that do not oversee themselves.
The question arises, does the Supreme Court oversee itself? If it does not, then it cannot be the court that oversees all courts that do not oversee themselves, because there will be some court (itself) which does not oversee itself and which the Supreme Court does not oversee.
But if it does oversee itself, then the Supreme Court cannot be the court that oversees only courts that do not oversee themselves, because the Supreme Court will oversee a court (itself) that oversees itself.
Therefore the Supreme Court cannot exist, and no system of judicial oversight is complete.

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

Does anybody know what happened to the show of Feb

Does anybody know what happened to the show of Feb 4, on imagery in the brain? It is a subject I am interested in, but it hasn't been posted and I get no response from emailing Philosophy Talk blog admin.

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

In reference to the post 'the supreme court does n

In reference to the post 'the supreme court does not exist'.
Nice try but your attempt to use Bertrand Russells set theory paradox does not work well.
You state "A complete system of judicial oversight will be such that every court has some court directly overseeing it. Indeed, every complete system will have some court (call it the Supreme Court) which oversees all and only courts that do not oversee themselves."
These statements are self-contradictory, so everything which you conclude from them is meaningless. The proper conclusion from your reducto ad absurdem argument is that at least one of your premises is wrong, not that the supreme court doesn't exist.

Guest's picture

Guest

Thursday, February 22, 2007 -- 4:00 PM

I believe that the American people are judged not

I believe that the American people are judged not only by the people (society) as a whole unjustly, but by other nationalities unjustly as well. We live in a democracy where the final verdict is guilty by ignorance of knowing what is right. It is very imperative that we know the law. We as Americans need to know where we stand in the court room, before Congress, or the Supreme Court when defending or debating an issue. Read, understand and react.

 
 
 

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