Comment by norir | Hacker News Reader

Comment by norir | Hacker News Reader

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I like this idea. A somewhat related idea I've had is that instead of giving the supreme court ultimate power to overrule and/or reinterpret existing legislation they instead would be given power to call a referendum. Each justice would have the ability to attach their own revised version of the law to the referendum and there would be a voting process to determine which version of the law to accept as canonical. This would prevent the kind of situation we have right now where the court is controlled by a minority group that is imposing its views with impunity. So long as there is but one voice on the court that represents the majority public interest, the public can win out (provided elections are free and fair of course). Right now, regardless of where you fall ideologically, it is clear that the structure of the court can be exploited to impose a vision of the country that does not reflect the wishes of most of its citizens. Even those who feel ideologically aligned with the supermajority court should be concerned with the tact they are taking. It's destabilizing and planting the seeds for the institution's demise.

The problem with referenda that the function of the Supreme Court isn't writing new laws but settling individual cases according to existing law. The reason why this has wide reaching implications is because other courts are bound to follow its legal arguments as precedents with other cases (and because Supreme Court justices can sometimes rule that a particular law is inconsistent with the constitution, which they do at least in theory with the intent of preserving the constitution rather than creating a new law)

The public is clearly not bound to even attempt to be consistent in its opinions from case to case, and if it's all over the place in its verdicts and might well be accepting or rejecting a verdicts for different reasons from the justices (maybe they think the legal arguments about privacy in the original Roe vs Wade were weak but also think women should have an inherent right to abortion that legislators haven't provided them with), it'ś difficult to see how lower courts can be bound by it.

There's also a big question of who gets to vote, particularly for the cases where a state law is argued to be in violation of the federal constitution, which tends to be the more controversial ones...

The problem is that existing law in many cases (that end up in SC) is simply too vague to be a meaningful expression of intent. In those cases, since the judges are still required to rule one way or another, we end up getting those tortured decisions where a big effort is made to contort the law into some interpretation that would allow for a ruling.

In my opinion, if SCOTUS is split 5/4 (or even 6/3) on anything, that should be taken as prima facie evidence that the law is unclear and needs amending. At that point we should require all the deciding judges to make a write-up for each opinion in the case detailing the requisite changes to the law that would make all judges to rule unanimously in favor of that opinion. These can then be submitted to the legislature or a referendum or whatever, but either way some decision needs to be made.

>This would prevent the kind of situation we have right now where the court is controlled by a minority group that is imposing its views with impunity

You're completely missing the point of the supreme court. It's explicitly not a democratic institution; it's purpose is to protect the constitutional rights of the minority from the tyranny of the majority. The other two branches are democratic; isn't that enough for you?

Surely you see the point of the US being a republic; rule by law, not by men. In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum. That kind of thing has happened countless times in history in countries that didn't have a strong court system capable of protecting people's rights from the tyrrany of the majority.

> In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum

I don't agree with the commenter you responded to, but I think this sort of view is similarly flawed. Many developed Western democracies endow the courts with much weaker powers of judicial review than the US. In the UK, for example, judicial review applies only to Orders of Council, while Acts of Parliament are exempt.

I have much more faith in democracy, flawed as it is, than the Supreme Court.

> Surely you see the point of the US being a republic; rule by law, not by men.

Men wrote the laws.

> In your vision of the supreme court, if the majority decided they wanted to lock up some minorty and send them to gas chambers, the court couldn't do anything to stop them because the populace would vote for it in a referendum. That kind of thing has happened countless times in history in countries that didn't have a strong court system capable of protecting people's rights from the tyrrany of the majority.

I agree the Supreme Court has effectively protected minority rights: the minority of wealthy property owners. I'm somewhat confident that the historical list of Supreme Court injustices that served to oppress vulnerable minorities (e.g. Dred Scott and Japanese internment) is longer than the list of times the Supreme Court has lifted those same minorities up.

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