Weakening Judicial Review
Courts possess the authority to set aside legislation that contradicts the constitution in most western countries. The role of judges in many European nations in deciding policy issues has become more accepted over the last few decades,[9] having become legislative "veto players."[10]
Yet, strong traditions and rules exist in several European nations placing judiciaries in more equal, if not subordinate, roles than in the U.S.
A French law of 1790 and the nation's first Constitution prohibited judicial review outright of legislation and administrative acts. Both were based on the principle that courts should not take part in lawmaking functions. The judge was imagined to be a virtual "slave to the legislature" or more specifically, subordinate to the code system of law. Judicial review was considered to be "government of judges" that violated the sovereignty of the People. Legislative statutes were to be the sole credible source of law. Codes were to be written as simply and clearly as possible.[11]
There is still no judicial review of passed legislation in France. Its Constitutional Council can only review the constitutionality of a proposed law before it is enacted.
Courts in the United Kingdom may only issue a "declaration of incompatibility" when reviewing statutes. The declaration does not affect the operation or enforcement of the existing law, although it may spur a legislative effort to amend the law. A comparable system exists in New Zealand.
The German Constitutional Court possesses the authority to review legislation, but it can only overturn a passed law if either one-third of the legislature, a state government or federal government files a suit. Individuals must bring a constitutional challenge before a three-judge panel.
While Canadian courts possess judicial review, the national and provincial legislatures can couch proposed laws in certain ways that shield them from judicial examination.
Courts cannot overrule lawfully enacted legislation in the Netherlands. The same is true of Switzerland. In the latter case, questionable constitutional laws passed by Parliament can be challenged directly by people via a national referendum if 50,000 valid signatures are collected. The nation's democratic cultural heritage and skepticism towards the judiciary are major factors supporting their system.
Other alternatives
Additional ideas have been suggested for reforming our judicial system to make it more accountable. Most of these would require amending the Constitution.
Certain issues (i.e. whether corporations should be granted never-intended constitutional rights) could be excluded from judicial consideration. Congress via a super majority could override the Court decisions or decisions could be overturned via national referenda. The interpretive powers of the Supreme Court could be narrowed. Or the Court itself could be eliminated, with the Senate serving as a Constitutional Court.
Some if not all of these ideas are debatable. What is not debatable is the public's desire for change. There is overwhelming trans-partisan support for changes to the Court structure. More than 70% of the people support abolishing lifetime appointments and allowing justices to serve only a fixed term, including 72% Republicans, 71% Democrats and 69% Independents.
CONCLUSION
When nothing is sure, everything is possible.
~ Margaret Drabble
The certainty or "sureness" of the Supreme Court's impartiality and integrity is gone. People of all political views trust the Court less and less. Nothing suggests that decisions in the short or medium term will bring different reactions.
Courts possess the authority to set aside legislation that contradicts the constitution in most western countries. The role of judges in many European nations in deciding policy issues has become more accepted over the last few decades,[9] having become legislative "veto players."[10]
Yet, strong traditions and rules exist in several European nations placing judiciaries in more equal, if not subordinate, roles than in the U.S.
A French law of 1790 and the nation's first Constitution prohibited judicial review outright of legislation and administrative acts. Both were based on the principle that courts should not take part in lawmaking functions. The judge was imagined to be a virtual "slave to the legislature" or more specifically, subordinate to the code system of law. Judicial review was considered to be "government of judges" that violated the sovereignty of the People. Legislative statutes were to be the sole credible source of law. Codes were to be written as simply and clearly as possible.[11]
Courts in the United Kingdom may only issue a "declaration of incompatibility" when reviewing statutes. The declaration does not affect the operation or enforcement of the existing law, although it may spur a legislative effort to amend the law. A comparable system exists in New Zealand.
The German Constitutional Court possesses the authority to review legislation, but it can only overturn a passed law if either one-third of the legislature, a state government or federal government files a suit. Individuals must bring a constitutional challenge before a three-judge panel.
While Canadian courts possess judicial review, the national and provincial legislatures can couch proposed laws in certain ways that shield them from judicial examination.
Courts cannot overrule lawfully enacted legislation in the Netherlands. The same is true of Switzerland. In the latter case, questionable constitutional laws passed by Parliament can be challenged directly by people via a national referendum if 50,000 valid signatures are collected. The nation's democratic cultural heritage and skepticism towards the judiciary are major factors supporting their system.
Other alternatives
Additional ideas have been suggested for reforming our judicial system to make it more accountable. Most of these would require amending the Constitution.
Certain issues (i.e. whether corporations should be granted never-intended constitutional rights) could be excluded from judicial consideration. Congress via a super majority could override the Court decisions or decisions could be overturned via national referenda. The interpretive powers of the Supreme Court could be narrowed. Or the Court itself could be eliminated, with the Senate serving as a Constitutional Court.
Some if not all of these ideas are debatable. What is not debatable is the public's desire for change. There is overwhelming trans-partisan support for changes to the Court structure. More than 70% of the people support abolishing lifetime appointments and allowing justices to serve only a fixed term, including 72% Republicans, 71% Democrats and 69% Independents.
CONCLUSION
When nothing is sure, everything is possible.
~ Margaret Drabble
The certainty or "sureness" of the Supreme Court's impartiality and integrity is gone. People of all political views trust the Court less and less. Nothing suggests that decisions in the short or medium term will bring different reactions.
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