Checks and balances

The recent SCOTUS decision regarding Hobby Lobby has made me start to question our entire political system. And before you think that this is going to be about religion or conservatives, let me go ahead and stop you. This isn’t about either of those. This is about our political system as an institution. And after the decision the other day, I couldn’t help but think about checks and balances and which branch of government really wields the most power.

A lot of people in this country seem to think that Obama and liberals think that he’s some sort of king, a would-be American emperor who is determined to lead like an autocrat. Never mind that congress has an equal part in this (In fact, Woodrow Wilson issued 10x the amount of executive orders that Obama has…Hell, even Jimmy Carter issued more executive orders, and we all know what a tyrant he was). The point is that, due to checks and balances, a president can’t act in that way. If a sitting president really were to rule autocratically, congress could easily impeach them, and the SCOTUS could overturn all of his or her decisions (all executive orders are subject to judicial review, FYI). But there IS one branch of the government that essentially operates under its own discretion.

The supreme court itself.

First an foremost, whereas the other two branches of the government are elected directly by the people, the supreme court judges are appointed. And while the members of congress and the president are subject to term limits and recalls, supreme court judges are in for life. Congress has to approve the president’s actions and appointments; the president can veto congress. But who vetoes the SCOTUS?

Essentially nobody.

If the court makes a “bad” ruling, there are only TWO ways that it can be overturned. First, the supreme court itself. New judges are appointed, they look at a decision and overturn it. Or the people of this country can directly amend the constitution itself. That’s it. There’s no review process, no check or balance. It’s pretty much whatever the court says goes, regardless of what anyone else thinks. To me, that seems like a little too much power. How can one branch of government be allowed to make what amounts to essentially irreversible decisions?

Yeah yeah, the supreme court itself can overturn it’s own decisions. Big deal. “Who watches the watcher?” springs to mind. If they aren’t beholden to anyone–since they aren’t elected and serve for a lifetime–why would they ever be motivated to overturn a previous courts decision? In fact, the court (all courts, actually) operates under an idea called stare decisis–namely that previous decisions of the court should be upheld, even if the new court disagrees with it, and that the lower courts must always respect the decisions of the higher courts. On a basic level, this makes sense, because if we didn’t have some ground rules you’d probably get every judge overturning everything they didn’t agree with constantly and there would be judicial chaos. But it doesn’t reflect that the values or ideas of a society change (or the fact that even supreme court judges might have a bias or a stake in the outcome of a ruling…).

Case in point: Citizen’s United. I don’t know a single person who thinks that this was a good idea (other than billionaires, probably). In fact, I’d be willing to bet that 99% of this country would agree that unlimited money in politics is a bad thing, and that money is not the same thing as free speech. Citizen’s United muddies and dilutes our democratic principles. But don’t look for it to change anytime soon, because the only people who can change it are the people who made the decision. Here you have a wildly unpopular ruling that goes against every principle this nation was built on, and there’s absolutely nothing we can do about it, because there are no checks and balances on the supreme court.

The result of all of this is that the SCOTUS essentially operates under it’s own supervision and auspices, which seems about as undemocratic and as authoritarian as you can get.

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10 thoughts on “Checks and balances

  1. I’ve always liked the saying (I don’t remember who said it) that “Democracy is a terrible system, but it’s the best system we got”. You point out some of the excellent negatives to the judicial branch, but there is a flip side. The judges are somewhat cloistered. In an interview I saw with one of the judges they said the reason for this is strictly so they cannot be “politicized”. Having them be elected like politicians would turn them into politicians. They would be pandering, and flip-flopping on issues right and left so that they could be re-elected. By removing them from that process, the judge who was doing the interview (can’t remember which one…I think Ginsberg) said they could actually do their jobs better. She said even if they could be fired it would be forcing them to make decisions that are popular over ones that are right. I think there is some truth for that, but the consequences are as you pointed out. What happens when a judge becomes corrupt? Well there are 9 of them, so you’d probably have to get to at least a couple of them before you could do some damage and they’d have to be corrupted pretty secretly unless they become independently crazy and corrupt, but then they’d have to do some in the same direction to sway votes into unreasonable outcomes.

    The fact that judges are nominated by the President correlates pretty well to the political leanings of each of the Judges. Right now there are judges nominated by Republican presidents and 4 by Democratic ones. They have to be vetted by congress as well. The fact that DOMA and APA had “left leaning” decisions is pretty surprising so the fact that there have been some awful decision such as them overturning the Voting Rights Act, and this last bit of nonsense. I guess I would say that the Supreme Court is more of a reflection of who we are politically right now rather than a powerful machine. The Supreme Court has allowed for a lot of protection towards minorities and women so I’m not convinced that they are the enemy. I would say Citizen’s United was their biggest screw up and with that one they almost had to vote in favor of Hobby Lobby in this one. Citizen’s United has allowed so much money to enter politics and allows for other bullshit like this most recent one.

    I think perhaps one solution would be that a 5-4 decision isn’t enough to overturn a law passed by congress. Since APA was passed by the legislative and executive branch and voted constitutional by the Supreme Court itself it should take more than a 5-4 majority to negate that.

    As an aside Dawkins things that all these important judge positions should be held by scientists who actually are trained in gathering evidence and evaluating based on that evidence. And I agree. 🙂

    1. Oh I would LOVE to see these positions held by scientists!

      I guess my point wasn’t necessarily to portray the SCOTUS as the enemy, but to merely point out that the checks and balances system tilts heavily in their favor. I suppose since you can’t please everyone, every ruling is bound to generate a degree of uproar. I just find it odd that these decisions are practically irreversible. That’s the part that concerns me the most. Decisions can be appropriate for one situation or period of time, and inappropriate later on down the road.

      I like the idea of needing more than a 5-4 majority to pass something. I’d be open to having congress review SCOTUS decisions. You’d think that the two branches that deal with making laws and interpreting them would be more intertwined.

      Something you said though really hits home for me, and that’s the idea of doing what is “right” and not what is popular. I don’t know if I’m ready to give 9 people the privilege to determine what is “right” for 300 million. It’s not practical, but it would be wonderful if citizens could vote on laws directly instead of letting a small group of people create them behind closed doors.

      1. Agreed….that would be a true democracy instead of a republic which is what we have. I mean all of this is as irreversible as any of the constitutional amendments or the constitution itself which is older than many of the supreme court decisions that affect us today.

        I am not enough of historian to know whether the abolition of slavery would have met the popular vote or interracial marriage, but if all those things would have won a popular vote then perhaps that should be the voice over the judicial. Perhaps the Judiciary branch should only be handling challenges to laws passed by the government (federal or lower) to see whether they are constitutional like they did for APA. Once APA is upheld by the courts then any company or person that is part of the country should have to follow that law. I don’t know. What if a law is immoral but is still supported by a majority of the population? It seems like the Judiciary branch would come in handy there. A true democracy also requires an educated public, and like I think we have discussed before voters aren’t even informed about the candidates they are voting for, if they had to vote for every law it might just be even more problematic. I don’t know. In the end I think it really boils down to education. Get the people knowledgeable about how the world works, how to be a critical thinker, how to evaluate evidence and you have a better society. Countries with better education systems than we have may not have the most powerful economies, but their happiness levels and quality of life are all relatively high, instead of here where the love of money and consumption continues to raise the level of economic equality.

      2. You make a valid point about the quagmire that is letting uneducated voters decide every little thing…lol. As you mentioned, I absolutely agree with you that the success of our system depends upon the education of our populace, and I think that right now that education is woefully inadequate. Although part of me wonders sometimes if we as a culture just don’t value education. Most Americans probably can’t name a single living scientist, and it seems that a large chunk of the population doesn’t trust science in general. If we as a nation have lost our value of education and science, then I don’t see much hope for us.

      3. Sadly I think you are right. Being an educator it is clear to me how little value there is put in it. It’s reflected in the students who really don’t want to be there, it’s reflected in the administrators who just think they are running a business, and it is reflected in the policy makers who continually make cuts to education in favor of less fruitful endeavors. I am an eternal optimist, but I am starting to join the camp of people who feel that America is going to get a lot worse before it gets better. I’ve shifted my optimism to the longer term big picture. I truly feel like 21st century has a lot of suck in store for this country.

  2. I started questioning our entire political system after Obamacare was upheld. It seemed to me that there were no longer any checks and balances, so I’m in agreement. The purpose of government now seems to be an attempt to sustain its political actions in many instances.

    You brought up impeachment and suggest that this could easily happen if Obama were really acting like a king. But why do you think this would happen? It’s my understanding that the GOP is afraid to impeach him, although many are on record admitting that he may have committed impeachable offenses, and there are plenty of pundits and journalists who believe the same thing. I think there’s real fear to impeaching the first black president, and that’s shameful.

    I do agree that the Supreme Court has too much unchecked power, but I happen to agree with their decision on Citizen’s United. Congress can’t ban free speech by limiting communications by corporations. Not only can you and I support or oppose political candidates, but so can corporations. These companies aren’t even donating to political campaigns, but that’s not what is happening. If congress could ban the film produced by Citizen’s United, then it could ban all kinds of books, newspapers and blogs, and they could jail citizens for engaging in political speech.

    1. I don’t think that the ability of corporations to support a candidate or a bill should be removed or eliminated. I definitely don’t believe that corporations are people. That’s one of the most bizarre moves in history, to give person-hood to an idea. But it’s law now and there’s nothing I can do about that short of starting a national movement to amend the constitution.

      Why I don’t like citizens united is because it makes the playing field uneven. Yes, I can give all my money to a democratic candidate, but if Exxon or Apple can give the opposing candidate $100,000,000, then how is that equal representation in the political field?

      Democracy can’t exist without everyone having an equal say. One person, one vote. That sort of thing. Citizens united makes it so that the people with more money have more a political say, which to me is profoundly undemocratic.

      But that’s not to say corporations shouldn’t be able to support candidates and bills that they believe will benefit them. By all means, go right on ahead. But I think that the amount of money corporations can use to support a political element should be equal to that of the average citizen–no more and no less.

      Personally, I’d love it if all campaign contributions were capped at a ridiculously low amount. I don’t know what that would look like in terms of contributions per person, but let’s say each candidate can accrue no more than $5 million, TOTAL. I think if that happened, you’d see campaigns that were more substance and less rhetoric. That way, all politicians would be forced to move away from a campaign model that’s centered around attack ads and media propaganda and more towards a campaign based on actual issues.

  3. Corporations aren’t “people”, per se, but they are people because they are run by people. If I start my own company as a photographer, then I run my own company. I could rent or lease an office space, or use a room in my own home. I could also have a company car to get to events, and a computer to edit my work. I could also have a number of assistants. But the profit I make can be delegated to new equipment, employees, maintenance, or to someone I want to see become elected. It’s my money, and in America I’m free to spend my money as I choose. And it’s the same way with a company, and that’s why corporations are people. Corporations aren’t run by computers or by themselves; they require human intervention in order to work, and those human beings have a right to delegate their profits where they choose, just like I do, or any other citizen.

    True, not everyone has the same resources as the person next door, but life isn’t fair. Some people make more money than others, and if we don’t like it, well, we can do something about it- make more money. We live in America, and we have the freedom to earn whatever we want to (to some degree).

    The playing field may not be even, but the Constitution doesn’t guarantee us fairness. We have to make do with what we have, just like everyone else, and I think that’s enough. I may not like it, but I have to learn how to deal with that.

    1. The entire point of a democracy is to level the playing field for everyone. Otherwise you’d just have a plutocracy.

      While I agree that we don’t have equal stations in life, are we not all affected equally by law? On paper at least, every single citizen regardless of their social status is subject to the same laws and penalties. Every principle of our democracy is based around the concept that since everyone has an equal stake in the American experiment, everyone should have an equal say.

      You’re right, that’s not a garauntee for economic fairness. But that’s not what we’re talking about here. We’re talking about political fairness. Our economic standing and our political standing should not be synonymous, and that’s exactly what’s wrong with our system and especially with citizen’s united (which is the most ridiculous name ever).

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