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Comment by dkarl | Hacker News Reader

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.)

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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.

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.

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.

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.

> 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.

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.

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