Democracy and the Judiciary

09 February 2007

Today's episode is about the Judiciary and Democracy. Our guest will beLarry Kramer, Dean of theStanford Law School.我们真的很期待拉里来做客。自从来到斯坦福,拉里就一直是变革的推动者。过去,法学院很少与大学其他学院合作。但是在拉里的领导下,法学院和大学的其他部门建立了许多良好的合作关系。例如,该校现在有多个领域的博士-法学博士联合项目,包括哲学博士联合项目。所以,你们这些鼓舞人心的哲学家律师之王们,都把斯坦福列入了你们追逐梦想的候选名单。

Anyway, on to the subject of today's show. In one way, it seems obvious that the court system -- especially judicial review of the acts of the legislative and executive branches of government -- is, in one way, a bulwark of our constitutional democracy. That was a point made clearly and forcefully by a past Dean of the Stanford Law School,Kathleen Sullivan, who was our guest on Capitol Hill when we did a show onSeparation of Powers.最高法院保护少数人的某些权利不受多数人的践踏,保护所有人的基本自由和参与权利,并检查政府其他部门的过度行为。这对民主自治很好,也很重要。

那么法院到底有什么问题呢?当然,其中一个问题是,我们人民能够让政府承担责任的主要手段是通过选举过程。但总的来说,法官们并不以人民的意愿为服务对象,我并不主张他们应该这样做。事实上,我鄙视司法选举。在加州,我们对某些法官进行司法选举。他们通常很低调。你几乎看不到法官们积极竞选公职。相反,在我们大量的选举指南中,你会看到他们的书面声明。除非他们因为其他原因上了新闻,否则你对他们的了解就只有这些了。尽管如此,我几乎总是觉得他们的候选人声明令人反感,头脑简单,旨在迎合而不是提供信息。 Elected judges become pandering politician, even if on a smaller scale. So I prefer to see judges appointed rather than elected. Unelected is more likely to mean independent, especially where appointments are a joint responsibility and come with lifetime tenure.

那么真正的问题是什么呢?法院的决定,尤其是最高法院的决定,近年来影响深远,经常造成严重的社会后果。在过去五十年左右的时间里,最高法院在我们社会生活的变革中发挥了重要作用。它一笔一划地废除了学校里的种族隔离制度,对堕胎的监管进行了严格限制,极大地改变了警察的工作方式,严重限制了平权行动可以用来带来一个更包容的社会的程度——等等,等等,等等。无论你是否认为这些决定是明智的,从法律和宪法的角度来看,你都必须承认,它们影响深远。结果并不都是好的。

Indeed, I submit that the courts are to some large measure responsible for the fractious and divided nature of our politics over the last 50 years. That's because many on the losing side of some of the court's decisions felt as though their opponents had won through the court system what they had no chance of winning through the political system. And the losers organized themselves to try to seize the political process to gain back what they thought that had illegitimately loss.

现在我并不是说法院的决定总是错误的,也不是说失败者是正确的,他们试图使用政治程序来撤销法院通过司法命令所做的。我只是说,当许多人认为法院代表一系列宗派利益“篡夺”了政治进程时,社会和政治动荡几乎不可避免。这未必是件坏事。As I say inthis piece, stability in the service of reaction is no virtue, instability in the service of progress is no vice.

Still, I think there is something to the thought that what the political process CAN decide, it really SHOULD be left to decide, at least ceteris paribus. Take the abortion issue. It seems to me that if the question of abortion had been left entirely to the political process, we would by now have had a long settled and reasonable compromise. There would be some restrictions on abortion; these would vary from state to state, but it seems hardly likely that abortion would be flat-out illegal in all circumstances anywhere. The compromise might not represent an equilibrium point. We would probably find a certain ebb and flow in the restrictions that states place on abortion as social attitudes and mores evolve. But what would be missing, I think, is the current level of intensity and anger that certain parties currently bring to this issue.

再次强调,我并不是说不稳定的威胁总是法院避免裁决一个问题的充分理由。有时,法院需要,可以说,动摇社会,成为社会进步的前沿。但我不认为可以否认的是,当它这样做时,它可能会对政治体系产生大规模的不稳定影响。而这些破坏稳定的影响可能会严重威胁法院旨在带来的社会进步。没有任何其他机构拥有如此独特的权力组合,一方面影响政治进程,或好或坏,但另一方面,又置身于政治进程之外,几乎对广大人民不负责任。

Perhaps I'm wrog, but this strikes me as something of a paradox. What do you think? Have I missed something?

Comments(5)


Guest's picture

Guest

Sunday, February 11, 2007 -- 4:00 PM

建议……the courts are to some large m

建议……法院在很大程度上(负责)……这是斯坦福大学法学院院长拉里·克莱默(Larry Kramer)发表的令人难以置信的言论。
And to suggest that "... unelected is more likely to mean independent.." is so non-sensible and almost painful especially if one knows - this is an enormously educated and powerful, his position effects the lives of many individuals, man stating this.
Dean Kramer I am one voter who does not despise elections as you obviously do ".. I despise judicial
elections."
关于“..我几乎总是觉得他们的候选人声明令人反感,头脑简单,旨在迎合而不是提供信息。"
Dean Kramer, I read these statements and I find them informative and at times enlightening - eagle scouts,
Sierra Club Membership, church related activities. number of children, etc. combined with judcial decisions made by the individual judges. All this information allows me to make better, if not best decisions in the voting booth.
I believe in the democratic process. The ability of the common people to voice their beliefs and to exercise through their votes a small measure of power.
Indeed, "the court system ... is in one way a bulkwark of our constitutional democracy."
Lets keep it this way.
To appoint judges and "... come with a lifetime tenure." could, in my opinion, lead so easily to a theocracy, or a philosophical dictatorship countering the freedom and rights of Americans.
Sincerely, Rosemarie Neth

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

THE SUPREME COURT DOES NOT EXIST In any

THE SUPREME COURT DOES NOT EXIST
In any judicial system of oversight, some courts will have no oversight power whatsoever, some courts will directly oversee other courts, while perhaps some courts will directly oversee themselves. A complete system of judicial oversight will be such that every court has some court directly overseeing it. Indeed, every complete system will have some court (call it the Supreme Court) which oversees all and only courts that do not oversee themselves.
The question arises, does the Supreme Court oversee itself? If it does not, then it cannot be the court that oversees all courts that do not oversee themselves, because there will be some court (itself) which does not oversee itself and which the Supreme Court does not oversee.
But if it does oversee itself, then the Supreme Court cannot be the court that oversees only courts that do not oversee themselves, because the Supreme Court will oversee a court (itself) that oversees itself.
Therefore the Supreme Court cannot exist, and no system of judicial oversight is complete.

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

Does anybody know what happened to the show of Feb

有谁知道2月4日的那场关于大脑意象的节目怎么了吗?这是一个我感兴趣的主题,但它还没有发布,我没有从哲学谈话博客管理员那里得到回复。中国伊朗亚洲杯比赛直播

Guest's picture

Guest

Monday, February 12, 2007 -- 4:00 PM

In reference to the post 'the supreme court does n

In reference to the post 'the supreme court does not exist'.
Nice try but your attempt to use Bertrand Russells set theory paradox does not work well.
You state "A complete system of judicial oversight will be such that every court has some court directly overseeing it. Indeed, every complete system will have some court (call it the Supreme Court) which oversees all and only courts that do not oversee themselves."
These statements are self-contradictory, so everything which you conclude from them is meaningless. The proper conclusion from your reducto ad absurdem argument is that at least one of your premises is wrong, not that the supreme court doesn't exist.

Guest's picture

Guest

Thursday, February 22, 2007 -- 4:00 PM

I believe that the American people are judged not

I believe that the American people are judged not only by the people (society) as a whole unjustly, but by other nationalities unjustly as well. We live in a democracy where the final verdict is guilty by ignorance of knowing what is right. It is very imperative that we know the law. We as Americans need to know where we stand in the court room, before Congress, or the Supreme Court when defending or debating an issue. Read, understand and react.