this post was submitted on 30 May 2024
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One take I've seen some Australian lawyers suggest is that the extent of politicisation of America's Supreme Court is an inevitable result of how highly political their constitution is.
In Australia, our constitution deals with the basic functioning of government; how elections take place, who can vote, and mostly fairly boring procedural stuff like that.
America's constitution quite famously lays out a number of very specific rights. Rights that are, by their very nature, quite politiciseable and open to interpretation. If SCOTUS is able to invent rights that they claim are implied by the written text, with the legislature unable to legislate around it, that's a problem. It becomes even more of a problem when SCOTUS decides they can infer rights that are implied by those rights which SCOTUS themselves inferred. Deciding what rights people have—or removing those rights—should be the job of democratically elected representatives, not political appointees. So the court granting a right to abortion because they say it's implied that you have this right based on the right to privacy (quite a large stretch, IMO), and that right to privacy being implied by your explicit right to due process (a more reasonable inference), is quite a silly arrangement. Better for the legislature to simply do their job.
Not that this is in any way "simple". It would require a complete ground-up rewrite of the American constitution. And that's obviously never going to happen.
The Supreme Court idea of judicial review was, essentially, created by an early Chief Justice using the classic children's excuse "the rules don't say I can't do this so therefore I'm doing it and you can't stop me"
Edit: I had this somewhat wrong. After reading, it seems a lot of the people who wrote and debated on the Constitution wrote strongly in support of judicial review, and it was in fact voted on and approved by multiple state legislatures after the Constitution was adopted. It simply wasn't worded explicitly into the Constitution. Chief Justice John Marshall did issue an official ruling that made it a standard practice but it was not a new concept.
I do think that the idea of judicial review itself makes sense. After all, what's the point of a constitution if the legislature can just makes laws that go directly against it? The problem, in my view, is that the constitution covers too many things, and does so in far too unspecific terms, which makes for an incredibly broad range of possible political interpretations.