On Tuesday, Amy Coney Barrett, nominated by President Trump and confirmed by the Senate, was appointed to replace the deceased Ruth Bader Ginsburg on the US Supreme Court.
On Wednesday, two new judges were announced for Australia’s High Court (to replace judges about to reach retirement age), appointed by the attorney-general in a process that is obscure, secret and less democratic than how the cardinals choose a pope. The new judges are Jacqueline Gleeson and Simon Steward.
Obviously and logically — sunlight being the best disinfectant — America’s method of choosing judges for the peak of its government’s judicial branch is far superior to ours. Theirs is proofed against partisanship, corruption and incompetence in the selection, because of the checks and balances built in.Ours is dependent on the whim of a single politician, not open to review, appeal or even scrutiny.
And yet, a passing familiarity is enough to know that, in fact, our system works to reinforce and uphold the rule of law, while theirs simply does not.
Appreciating why this is so helps us to understand the inherent fragility of democracy itself, and what actually holds it together.
Australia’s High Court has, since Federation, been populated by judges appointed by the federal government. Following the ancient tradition that judges hold their office by gift of the Crown, the power to appoint has devolved to the attorney-general in their capacity as chief law officer of the Commonwealth – in theory, a function distinct from their party-political role as a government minister.
The process of selection is invisible to the public eye; we’re allowed to know no more about it than we are the machinations in the Sistine Chapel before the puff of white smoke hits the sky.
Like the proverbial duck, beneath the surface there’s a whole lot of churn. High Court appointment remains the pinnacle; there’s no other role, for lawyers of higher status.There’s no shortage of willing applicants.The lobbying is intense.
Because of the secrecy, all the conditions one could need for scandal are present.An unscrupulous attorney-general could appoint a judge for favour, bribe, blackmail or political gain.Nothing, legally speaking, protects against it.
And yet there’s never been a whiff, attaching to any of the 57 appointments made since 1903.There have been overtly political appointees (Garfield Barwick and Lionel Murphy stand out) but even these are rare.Court-stacking is far more a media obsession than a factual reality.
The most one can say is that, in Australia, conservative governments have tended to look for judges they think will be “black letter” — meaning legally, rather than politically, conservative — and Labor governments have been more likely to appoint judges they hope will be a bit adventurous.Hardly radical at either end.
In the United States, meanwhile, the Supreme Court is no less political and politicised an institution than the Presidency and Congress.It has become a national obsession to focus on stacking the court with ideological bedfellows of whoever happens to be in power when a sitting judge dies (their appointments are lifetime).
Coney Barrett is manifestly poorly qualified, as was Brett Kavanaugh. Trump put them up, and the Republican-controlled Senate confirmed them, for an openly partisan political reason: to dictate America’s destiny by stacking the institution that makes its most far-reaching decisions.
All high courts, whatever they say to the contrary, make law.It’s beyond doubt that, while our High Court does so in a manner that is not consciously driven by ideology or political affiliation (accepting that subconscious preference and prejudice always exist and clearly influence judgement), the US Supreme Court barely bothers to conceal its members’ agendas.
This is frequently starkly exposed — famously, in the Bush v Gore decision that determined the 2000 presidential election on blatantly political lines, and just this week in a ruling designed to support voter suppression in Republican-controlled states.
What this tells us is that checks and balances do not a democracy make or maintain.The theory, that the Senate’s right of confirmation would restrain a president from choosing poorly, fails. At the same time, Australia’s anachronistic process of appointment by personal fiat has produced a stable, uncorrupted and constantly respected High Court.
The point is that nothing can protect democracy if those in power do not uphold it and the rest of us aren’t paying attention.
America, it is well arguable, is already lost. Along with all the other carnage, its Supreme Court is hopelessly compromised and can no longer serve its function with credibility.
Not much keeps us from the same fate.Because the Australian public has largely disengaged from politics altogether (obvious from the open corruption we now tolerate), we’re just reliant on our political leaders to resist the temptation to break the last few conventions of responsible government and do their worst.
If our current attorney-general, instead of appointing two eminent and apolitical lawyers to the High Court, had decided to give the jobs to a couple of mates from his old law firm, what would have happened?A bit of noise, some shouting in parliament, then on to the next scandal.
At least ours aren’t lifetime appointments.
Agreed, but it’s probably not a good time to suggest retirement at 70 in the US.
Perhaps not, but some commentators argue for fixed terms for Supreme Court appointments – e.g. 15 years – which avoids that problem
The USA system “is proofed against partisanship, corruption and incompetence in the selection, because of the checks and balances built in. [….] The theory, that the Senate’s right of confirmation would restrain a president from choosing poorly, fails.”
The reason the system fails is generally overlooked or forgotten. The US constitution originally provided for an lelected lower house and an upper house – the Senate – made up through direct appointment by state legislatures. The Federal papers and other contemporaneous records explain that the Senate was designed to be above party politics. Senators would exercise judgement for the national interest without undue consideration of partisan advantage. In practice of course the results were not so wonderful, but it sort of worked. However, the 17th amendment passed in 1912 made senators directly elected. This was supposed to be a triumph of democracy but in reality it broke the entire constitutional system of checks and balances that involved the senate. Tthe rot has spread from there to break the whole system. The senate, made up almost entirely of party politicians, became wholly partisan – exactly the outcome the founders tried to prevent. In consequence it has corrupted the appointment of judges, enabling the Republican party to pack the Supreme Court with its own justices who serve party not law (and many other courts). It made impeachment into a partisan farce reflecting only the balance in the senate, not the evidence or gravity of any alleged offence. And so on.
Yes, the old system was the best., but don’t mention the Civil War.
I recommend a piece at Counterpunchdotorg, by Jack Rasmus, 2 days ago, Rat, entitled;
‘Barrett confirmed, post-election chaos will ensue’.
An eye opener, for instance;
The USA has the electoral college, created in 1789, that was designed to check the popular uprisings of the 1780s following the end of the Revolutionary War in 1783. Read the minutes of the US Constitutional Convention. The electoral college was a concession to those who feared the direct action and voting by the general population. Following the revolutionary war’s end in 1783, Yeoman farmers rose up everywhere protesting the economic depression of 1784-87.
They occupied and in some cases even seized control of their state legislatures in protest to the unpaid debts owed them by their governments and rising taxation.
The US Constitution of 1789 was created in response to their protests, designed to centralize power in the hands of northern Merchants and southern Plantation owners in order to check the popular uprisings….
Here’s another fact that most Americans don’t know about their own Constitution: no where in it does it call for or authorize a US Supreme Court! Just that the Congress after the ratification of the Constitution by the States would legislate some kind of judiciary. The Congress created the court by means of legislation after the Constitution. So SCOTUS is subordinate to the authority of Congress, to whom the people in turn delegate their ultimate sovereignty periodically by means of elections. And take it back in elections.
So Congress can change anything it wants about the Supreme Court. It can add or delete justices. It can limit their terms in office, no longer for lifetime. It can make the justices serve by means of elections. It can even abolish SCOTUS altogether and replace it with something else.
The Supreme Court is thus not a co-equal to the Congress in the Constitution. It is not a co-equal institution. SCOTUS was purposely omitted by the framers of the Constitution because they didn’t want an institution of judges who were not directly elected by the people and who served for a lifetime to have any power to negate the sovereignty of the people or its elected Congress. That’s what the founders argued in the minutes of the Constitutional Convention of 1787!
Even less so was the Supreme Court given the authority to rule a law passed by Congress was unconstitutional. The legislation passed by Congress creating a court system did not give the Supreme Court authority to negate laws. That power is called ‘judicial review’, i.e. a power the Supreme Court usurped for itself in 1803 when it simply assumed the power of judicial review for itself. In short, the power of the Supreme Court to declare a law unconstitutional is not provided by the US Constitution nor passed by any law of Congress! It is therefore unconstitutional….”
That analysis makes the Supreme Court a metaphorical cancer in the body of USA governance, probably inoperable and ready now to kill its host.
You got it!
The US Constitution does establish the US Supreme Court. For details look up uscourts.gov and find “About the Supreme Court.” Here is the first paragraph: “Article III of the Constitution establishes the federal judiciary. Article III, Section I states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also established the lower federal court system.” The Court’s jurisdiction is established in Article III, Section II.
Read Jack Rasmus, and get back to me.
And, if you don’t understand what Jack’s describing, also get back to me.
Thanks David. I read it and sadly agree with the discouraging outlook he describes. As far as I can see though, he is wrong about the Supreme Court not being established in the Constitution while being broadly right about the ability of the Congress to shape the Court to its will. I went back to the US Constitution: Article III Section I says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Looking forward to the election count with real concern, the major Western power is in deep trouble and if I were there I’d be boarding up my windows as so many businesses are doing. And getting in a couple of weeks’ worth of emergency supplies.
Does that mean that Biden could reverse the appointments of say Barrett and Kavanaugh?
Nup, because both sides have maintained the myth that the Supreme Court is constitutionally sound.
And, that’s the key, As Rasmus describes, the ‘evolution’ of the court, unto ‘acceptance’, has never had a thing to do with democracy but, rather, subverting it – contrary to the original STATED intent.
If you want an example of how the ‘rule of law’ is a complete fraud in Amerika, I recommend the story of Stephen Donziger, the US environmental lawyer who went into bat for indigenous Ecuadorians, against Exxon, won, and then faced the full corruption of the entire Yank legal process, as every vested actor, from capital, to the legal profession, and judges, set about destroying his life.
Try theinterceptdotcom, Jan 30th this year, a piece by Sharon Lerner, headed and subbed;
HOW THE ENVIRONMENTAL LAWYER WHO WON A MASSIVE JUDGMENT AGAINST CHEVRON LOST EVERYTHINGSteven Donziger won a multibillion-dollar judgment against Chevron in Ecuador. The company sued him in New York, and now he’s under house arrest.”
By now, he’s been under house arrest for over 400 days, for an alleged crime that has a maximum sentence of 6 months.
With all due respect to folks like Rais, they look at the spun ‘principles’, I look at the reality of how the law ACTS!
Everything else is theory, and not REAL!
The US constitution says any judge of ‘good behaviour’ cannot be dismissed. Once a judge is in post the judge is untouchable unless it can be proven the judge did something obviously bad. There are excellent reasons for this, but that just makes it all the more important that the system of appointing judges picks appropriate people.
Rather less understandable is how seldom any judge who behaves abominably is dismissed. There is an excellent article on the Reuters site: Thousands of U.S. judges who broke laws or oaths remained on the bench
Although no judge can be dismissed except as above, it is still possible to change the terms of appointment by introducing a retirement age or fixed terms. This could, probably, be done to judges currently in post, although it would have to apply to them all equally. There is no necessity under the US constitution for judges to stay in post until they drop dead, it’s just the way it’s always been done.
Yes, all fine, good, thanks…but pease explain the red sash??
Appeal matters, I think. He is coming from the Federal Court.
“In the Federal Court of Australia, judges no longer wear traditional court dress, but wear black wool robes with a black trim for ‘first instance’ work, and black wool robes with a red trim for appeal cases. These robes were adopted in 1997 and were designed by Bill Haycock. The robes have seven horizontal tucks or “ombres” on one side, representing the six Australian States and the territories. They also serve to symbolise Australia’s federal constitution and the federal jurisdiction of the Court. The robes also include a vertical band of black silk made up of seven equal parts, also symbolizing Australia’s federal system and equality before the law.”
Australian federal governments have assiduously stacked the High Court with federalists, leading to the evisceration of States’ powers. The federal government’s most egregious omission from the High Court was Frederick Richard Jordan (1881-1949), who was the 9th Chief Justice of NSW (1934-1949).
Australia’s greatest jurist, Owen Dixon, judge of the High Court (1929-) and Chief Justice of Australia (1952-64) said that it was a tragedy in the life of the High Court that Commonwealth governments had not elevated Jordan to that bench because of Jordan’s views on Australian federalism, namely being a ‘State’s righter’.
I wish the distinction between judicial philosophy and political leaning would be more often made. Amy Coney Barrett wasn’t chosen because she’s a conservative (which she most likely is), but because of her judicial philosophy: originalism/textualism. If the democrats had it their way, they wouldn’t choose a liberal (RBG was actually quite moderate), but someone who believed in a ‘living constitution’.
As a progressive, my logic says textualism is the most consistent and appropriate philosophy to use in the judiciary. Interpret the law as it was made. Leave evolving issues to congress, whose job it is to keep up with the social progress of their constituents by making constitutional amendments and drafting legislation. Nine unelected men and women should not be having a say of what the law of the land ought to be. The politicisation of the supreme court is just a distraction from politicians not actually representing their constituents, but rather their donors; and obviously the hyper partisanship which makes legislating almost impossible.
That’s not to say though that their haven’t been partisan SCOTUS decisions e.g. Bush v Gore, but those are not nearly as common as the media makes it out to be. The same logic is applicable to Aus, but isn’t obviously as pronounced as we don’t have a Bill of Rights which leads to such contention.
“That’s not to say though that their haven’t been partisan SCOTUS decisions e.g. Bush v Gore, but those are not nearly as common as the media makes it out to be.”
Just how common does the media make it out to be? Please be specific. Anyway, the question of partisanship only arises when hearing a case with partisan relevance, so of course many cases are not decided on a partisan basis. This proves nothing. You seem to be ignoring all the rest, where certain justices show they put partisan advantage ahead of any legal judgement. Cases involving voter suppression and gerrymandering, for example, are overwhelmingly decided to the advantage of the Republican party, contrary to any provisions in the law or constitution that require or imply that citizens have a right to vote. The piecemeal gutting of the Voting Rights Act (1965) is a good example. It is also important to note the large number of significant decisions taken by the court without sitting, such as choosing which cases it will not hear. Bush v Gore is the tip of the iceberg.
Just about any case, where ‘conservative judges’ and ‘liberal’ judges are split (5-4 decisions); these cases are almost always deemed partisan, but are in fact just a result of differing judicial philosophies.
Not looking to have or win a debate, just trying to have a conversation. But if you mean that cases relating to voting are decided based on political views, rather than interpretation of the law based on judicial philosophy – that’s clearly partisan and a problem. No doubt voting suppression and gerrymandering significantly favour republicans; however, that doesn’t mean the decision is partisan.
Unfortunately, I haven’t had the time to read up on the opinions and rationale on these voting cases. So I’ll take your word for it.
“Just about any case, where ‘conservative judges’ and ‘liberal’ judges are split (5-4 decisions); these cases are almost always deemed partisan, but are in fact just a result of differing judicial philosophies”
If you say so. I recall from a long time ago after a large civil disturbance a law enforcement official earnestly explained it was not in fact a race riot, it just happened that one of the two groups involved in the fighting was made up of white folk and the other black.
Textualism is markedly different from originalism, and originalism is discredited –
Chemerinsky, Erwin (2020, October 21) The philosophy that makes Amy Coney Barrett so dangerous. New York Times.