When judges make decisions that should be left to politicians, they undermine democracy.
Already a subscriber?There’s a certain honesty in the way that our American cousins approach the relationship between politics and law.
, is an important contribution, as it seeks to influence the minds of judges, academics and practitioners in favour of an approach to interpretation conventionally described as “living constitutionalism”. In Australia, this way of thinking sees law as something of a “living tree”, which through a flexible approach to interpretation can grow and adapt to changes in circumstance, technology, culture and values.
When a judge in a constitutional case decides about a matter that should really be a question for politicians, it transfers power from the elected, and accountable, to people who, because of their tenure, cannot be held accountable for the overreach, nor, without a referendum, corrected. The late Justice Antonin Scalia described himself as both. Current Justice Neil Gorsuch has used both terms to describe his approach, and while in 2010 Justice Elena Kagan said that in a sense “we are all originalists”, by 2015 she observed in a speech at Harvard that “we are all textualists now”, though her comment was perhaps, as Breyer notes, somewhat tongue-in-cheek.
Almost without exception, decisions made in the living constitutionalist tradition tend toward the expansion of the scope of central governments at the expense of the states. That’s not a big deal if you’re a national corporation seeking simplicity, but it’s a huge problem if you believe that competition between states produces better policy, better taxpayer value in service delivery and better tailoring of solutions to local needs.
Justice Breyer was raised in San Francisco, a city that is today struggling with the consequences of so-called progressive doctrine. After studying at Stanford, Oxford and Harvard, he served as clerk to Justice Arthur Goldberg, himself a Democratic appointment to the Supreme Court following a stint as secretary of Labor under president John F. Kennedy.
United Kingdom Latest News, United Kingdom Headlines
Similar News:You can also read news stories similar to this one that we have collected from other news sources.
Supreme Court judge accused of assault, abuse refused more preparation timeTasmanian Justice Gregory Geason, who was charged in December, made his third appearance in Hobart Magistrates Court on Tuesday.
Read more »
Supreme Court judge denies AVO breachA Tasmanian Supreme Court judge will play a different role in the courtroom when he fronts a defended hearing in NSW to fight allegations he breached an apprehended violence order.
Read more »
Mona heads to Supreme Court in fight to keep Ladies Lounge for womenThe art gallery was ordered to close a women-only exhibit last month after a NSW man launched an anti-discrimination case.
Read more »
Mona heads to Supreme Court in fight to keep Ladies Lounge for womenThe art gallery was ordered to close a women-only exhibit last month after a NSW man launched an anti-discrimination case.
Read more »
Mona heads to Supreme Court in fight to keep Ladies Lounge for womenThe art gallery was ordered to close a women-only exhibit last month after a NSW man launched an anti-discrimination case.
Read more »
Aussie music duo Angus and Julia Stone sue former manager in Supreme CourtMusic duo Angus and Julia Stone are suing their former manager and a major international firm for allegedly overcharging them, however a court has heard local artist protection laws may not apply.
Read more »