In many democracies, the judiciary is protected, to one degree or another, from the voters. Our federal judges, for example, though appointed by elected officials, then have lifetime tenure. In more local venues, however, many judges are directly elected. What is the role of the judiciary in a democracy, and how much protection from democratic processes is needed? John and Ken probe the judiciary branch of government with Larry Kramer, Dean of the Stanford Law School, author of The People Themselves: Popular Constitutionalism and Judicial Review.
John and Ken begin the show by debating the role of the Judiciary's place in government, and imagining how they would construct a constitutional system from scratch. Ken argues that every branch of government should be accountable to the people--why should the judges on the supreme court be unelected officials? John counters that what Ken calls immunity or unaccountability is really independence, and is necessary for representing minority interests and preserving rights. Ken concedes that judges are necessary, even in a democracy, but he still feels uncomfortable with their ability to hijack legislation and interpret laws created by representatives of the people--in a Democracy shouldn't the people make these decisions? John discusses John Locke's views on government, which inspired the American constitution, and points out that an important function of the Judiciary is protection against the tyranny of the majority. Ken agrees with the impulse to make judges apolitical, but reminds John of the vast political power they hold--is this really a good system?
In order to respond to some of Ken's worries, John introduces Larry Kramer, Richard E. Lang Professor of Law and Dean of Stanford Law School. Ken asks Larry Kramer how to resolve the issues that came up earlier, and Larry acknowledges the difficulty of balancing accountability and independence in very important positions in representative democracies, but also points out that there is no real right answer to these kind of questions, and that the best thing to do is to look at historical examples of other systems to determine what worked well and what failed. Along those lines, Kramer discusses some of these examples with John and Ken. John then remarks upon the landmark U.S. Supreme Court cases which have been the catalyst for major change in American society. What exactly is the Supreme Court doing in these situations? Is it appropriate? Was it intended for them to be so powerful?
Larry Kramer explains the Supreme Court as a means for updating and evolving the Constitution through reinterpretation at different points in history, and this is a necessary function which allows a document written hundreds of years ago by a very different society to remain relevant and powerful as times change. John discusses some of the differences in the makeup of the Supreme Court over time, and Larry Kramer agrees that Judicial scholarship should not be necessary to be a Supreme Court Judge, and some of the greatest Justices were never Judges. Larry Kramer goes on to discuss the differences between ordinary law and constitutional law, and how one may be separated by the political process, but the other is rooted in politics. Ken prompts a discussion of other governments and their political systems, and Larry Kramer describes how our Supreme Court's roles are largely accidental, and that other newer systems have been able to separate the constitutional from the everyday more explicitly. John points out that this is one of the penalties for being one of the first truly democratic systems.
John, Ken, and Larry Kramer discuss different judicial systems, some possible improvements for the U.S. system, and respond to caller comments ranging from maverick court decisions to personal experience with law and order that left unpleasant impressions of the judicial system.
