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On the Nature of Judicial Power

ItRemainsToBeSeen
Posts: 8
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3/24/2014 9:55:08 AM
Posted: 2 years ago
What are the positives and drawbacks of a strong judiciary?

One that is, at least on paper, an equal branch of government to, say the legislature and the executive department. One that has the power to order a government officer to act or not to act. One that has, with some limitations, the authority to nullify duly enacted legislation if they deem it runs afoul of legal or philosophical principles.

It would seem to me that the nature of this kind of judiciary is nothing more than an organ for some larger power. That could be the legislature or executive departments themselves, or possibly unknown actors. If that is the case, should it not be dismantled?

It has been said, of course, that the judiciary is noble in its fight to protect the rights of minorities (racial, economic, otherwise) and the proportionately politically powerless. Each of us can name good landmark court opinions and bad.

But a deeper truth lies beneath them all: the power of the sword (executive) and the power of the purse appear, historically, to have supported the opinion of (currently) nine appointed judges in the US.

In other places such as Pakistan, we have seen an assertion of power by the judiciary without support from the civil authority completely collapse.

What is the proper role of a judicial branch in democratic government? How do we properly rein in a judiciary gone amok, which does not have direct democratic accountability? In essence, what distinguishes, beneath the surface, the judicial branch in a democratic country in the West from one, say, in the Near East?
YYW
Posts: 36,303
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3/24/2014 4:59:30 PM
Posted: 2 years ago
After 1937 there has been consistently a shift in the kinds of cases that characterize the narrative theme that the Supreme Court agrees to review, and they deal with individual/civil rights. SCOTUS's tendency to assume responsibility to check legislative and executive overreach against individual rights, especially on controversial issues, is referred to as "judicialization." The study of judicialization trends is something I was particularly interested as an undergraduate and grad student. While SCOTUS is a big deal, the real power of civil rights rulings lies in the federal courts, simply due to the volume of cases they review because the federal courts, unlike the Supreme Court, have considerably less control of their dockets. I would argue that The Supreme Court, and the judicial branch more generally, has played an indispensable role in the protection of individual and civil rights where local, state and federal legislation has either failed to uphold individual rights or outrightly violated them. Others argue that "activist judges" have undermined the court's integrity and exceeded the scope of the judicial branch's constitutionally granted authority. There is a dynamic argument to be made on both sides, but the question of how the court ought to exercise its power is one that varies according to politics and judicial philosophy.
Tsar of DDO
Noumena
Posts: 6,047
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4/4/2014 3:05:18 AM
Posted: 2 years ago
http://www4.uwm.edu...
: At 5/13/2014 7:05:20 PM, Crescendo wrote:
: The difference is that the gay movement is currently pushing their will on Churches, as shown in the link to gay marriage in Denmark. Meanwhile, the Inquisition ended several centuries ago.