On the passing of Ruth Bader Ginsburg and the politicisation of the Courts

Earlier this week I was published in The Spectator with some reflections on the ramifications of the sudden passing of US Supreme Court Justice Ruth Bader Ginsburg.

The intense political battle that is brewing over President Donald Trump’s nomination of Judge Amy Coney Barrett as Ginsburg’s replacement demonstrates just how contentious the Supreme Court has become.

But this is not what was intended, nor is it the way things have to be.

The constitutional separation of legislative and judicial powers was designed specifically to prevent the judicature from becoming a quasi-legislature capable of brining about significant social change.

Instead, the legislature was designed to be the site of strident political debate about contentious social and moral issues such as abortion, gun rights and the welfare state.

This is what happens when a nation’s courts are allowed to become the primary mechanism for resolving contentious social and moral debates better left to the political arena […]

With the controversy associated with the recent High Court Love decision, it’s certainly not inconceivable that we too might see greater US-style public scrutiny of appointments to our superior courts. But this is something that can and should be avoided. The key is to limit the ability of our courts to enter into the policymaking domain of Parliament. Our courts were never designed or intended to become quasi-legislatures in which matters of public policy would be decided by non-elected officials – as intellectually gifted and morally enlightened as they may be. This is how things should remain.

Like the Founding Fathers, the framers of our Constitution designed a system defined by a clear separation of legislative and judicial power. This system was chosen to dilute power and create strong checks and balances on decisionmakers.

US Supreme Court replacement rows: could they happen here?

My other pieces in The Spectator can be accessed here: https://www.spectator.com.au/author/xavier-boffa/

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