Should important social issues be decided by the courts

This relates not only to commercial or civil disputes but also to disputes between citizens or firms on the one hand, and governmental agencies on the other. One scholar writing in ascribed to administrative litigation two functions, both contributing to social stability:. Since police detention and especially police-imposed fines are widespread, the provision in this law that a person punished who does not agree to this decision is entitled to bring a lawsuit art.

In the following I will first summarise the basic structure or features of the system of administrative litigation as based on the law of and the Supreme Court interpretations, then deal with the main types of conflicts involved, and finally summarise achievements and problems of the role of the courts in settling administrative disputes. The legislator has to answer the question: Who may sue which administrative decision? These reviewable administrative acts are enumerated in art.

The enumeration contains the following types which also may be said to represent the types of conflicts between society and government which are reviewable in the courts:. Since these types of decisions are all related to property rights caichanquan and personal rights renshenquan , other conflicts between citizens and government agencies—not related either to renshenquan nor to caichanquan —cannot be reviewed by the courts.

One will find that interference of governmental agencies in the freedom of speech, assembly, publication, association, demonstration and of religious belief as well as in the right to work or the right to get an education are not covered by the shouan fanwei jurisdiction of the ALL.

These Supreme Court Opinions further clarified that decisions of the land administration concerning property rights in land and mineral resources are open to review by the courts. This is, for example, relevant for neighbouring rights xianglinquan and for the right to fair competition gongping jingzhengquan. Concerning the latter one, a court in Fujian province recently decided a case in which the plaintiff sued a city government because it instructed a corporation owned by the city to allocate certain raw materials preferentially to certain factories.

According to the ALL the defendant is the xingzheng jiguan , the administrative agency which has made the concrete administrative act. A judgment of a court in the district of Haidian in Peking came to a new understanding, and regarded a university as a proper defendant in administrative litigation. Appeals concerning conflicts resulting from exercising administrative functions are of an administrative and not of a civil nature.

Even if the ALL calls xingzheng jiguan as defendants it serves to resolve social conflicts and to maintain social stability when such shiye danwei come to have the capacity to become defendants in administrative litigation.

In an intermediate court in Fujian decided a case in which a middle-school teacher appealed against the request of the personnel office renshiju of a city to cancel a decision to prematurely retire and re-employ him. Although he received higher marks than needed for entering the school of his choice, he was not accepted because of his physical condition.

Recently, politics has played a big role in the pace at which judicial nominees are confirmed. The fewer judges that President Obama appoints to fill federal judicial vacancies, the greater leverage the next president will have in deciding the make-up of these courts.

Yet in the face of unprecedented obstruction, President Obama has made great strides to fill vacancies and to ensure that federal judges meaningfully reflect the dynamic diversity of the nation. A diverse federal bench improves the quality of justice and instills confidence that judges understand the real-world implications of their decisions.

Americans have different backgrounds, as well as an assorted set of professional, educational, and life experiences. It is important that the federal courts reflect the diversity of the public they serve. Furthermore, scholars have found that judges often change their minds during the deliberative process. Through its review of how the federal courts affect three specific policy issues—gun violence, money in politics, and voting rights—this issue brief shines a light on how important the federal courts are for the progressive community.

Gun violence has become all too familiar in America. However, research shows that reasonable gun control efforts decrease its occurrence. For 70 years, the Supreme Court never took a case that dealt with the Second Amendment and the right to bear arms. But in , in District of Columbia v. Four justices appointed to the Court by Democratic presidents disagreed.

Less than one day after the decision, gun rights activists began to flood courts with lawsuits that challenged any and all gun regulations.

According to the Law Center to Prevent Gun Violence, since the Heller decision, federal and state courts have issued more than decisions on Second Amendment challenges. After reviewing these common-sense laws, panels of the U. Courts of Appeals for the 7th and 9th Circuit struck them down. In Peruta v. This prompted Judge Sidney Thomas, who was appointed by a Democratic president, to author a vigorous dissent:.

Unfortunately, the majority never answers the question posed. The majority opinion conflicts with Heller , the reasoned decisions of other Circuits, and our own case law. First of all, as mentioned earlier, courts have become central to the governance of the country.

India is under a Common Law legal system, in which judges have the authority to make decisions that complement the laws adopted by the legislature and the regulations adopted by the executive; in other words, they, too, make the law. Implementing the agenda set out by the Constitution—the longest in the world—the action of the court is pervasive at all levels of society, from broad guidelines on the environment to the intimacy of family relationships Mody , Baxi There is also the sheer size of the judiciary and the staggering number of cases that are filed in courts.

In , the number of lawyers in India was estimated at about 1. There is, however, a much lower number of sitting judges than would be required 11 or 12 per every million people , 16 entailing an enormous backlog of cases in courts at various levels: in there were an estimated 52, cases pending at the Supreme Court, four million at the various High Courts, and 27 million at district level NDTV As a consequence, it can take years for cases to be decided.

In , newspapers were already echoing an alarming report issued by the Delhi High Court, stating that at least civil cases and 17 criminal cases had been pending for more than 20 years, as of March It might be tempting to attribute the search for an agreement or compromise outside the court to this inordinate length of time before a case is adjudicated.

However, the huge number of cases pending may merely accentuate a more general phenomenon that is not specific to India, and the search for an agreement usually results from various causes.

Having recourse to state justice may be a move which, from the start, is part of the very strategy of bargaining, involving mediating or arbitrating instances at different levels. As Galanter shows,. Indeed, in most courts, most moves into the formal adjudicatory mode are for purposes other than securing an adjudicated outcome. The principal determinants of these processes must be sought in the goals, resources, and strategies of the parties including, for this purpose, the court personnel.

As Krishnan et al. Intimidation is widespread; witnesses are frequently threatened or bribed by defendants, and judges report that some unscrupulous members of the bar perpetuate these practices by taking additional fees to coerce a settlement.

Prosecutors—who are often confronted with state witnesses who can turn hostile out of fear of retribution—worried about inadequate security, particularly during criminal trials in the district courts.

As part of the intimidation process, associates of criminal defendants often lurk around the courthouses or sit in the gallery during the trial itself. And yet, paradoxically and contrary to the idea that pendency would be the main reason for outside bargaining , despite huge delays, poor facilities, and widespread corruption at the judicial bureaucracy level, 18 courts often represent the main if not the only hope for many people, as the study conducted by Krishnan and his team of researchers shows.

As a matter of fact, socioeconomically disadvantaged claimants usually have limited institutional options for redressing their grievances about basic needs such as water, food, health care, sanitation, education, and safety. While local bodies like panchayats are supposed to be easily accessible, the concerns of these disadvantaged groups are actually routinely ignored. That is why these matters come to the court.

The first two contributions Headley, Berti reflect on how legal documents may shed light on aspects of social life for which there is little detailed information. In the early twentieth century, however, thanks to the growing influence of Hindu reformist movements, this autonomy implicitly became limited as judges began to express their doubts regarding the soundness of some of the decisions taken by caste authorities, questioning de facto their right to enforce social punishment.

The arguments and counterarguments presented on these occasions and found in legal archives document the details of these intra-caste relationships that are otherwise barely known. The notes may or may not be genuine—forged by the natal family of the deceased or by the in-laws.

Whatever the case, they combine both an appeal to emotions and to widely shared representations of women and marital life in India, and an awareness of the legal consequences of suicide and of writing the note. While implementing an Indian version of secularism, as framed by the Constitution, judges in fact extensively define and redefine religion in general, and Hinduism in particular, down to the tiniest detail. The analysis of the conflicts generated by successive extensions to Kaziranga National Park Assam and its ultimate connection with Project Tiger shows how the court can act above the State and promote a restrictive vision of ecology contrary to certain provisions of the Forest Rights Act Bhuwania shows how judges decided and high-handedly managed a radical transformation of Delhi against opposition by civil society or the government, leading to large-scale deindustrialization: PILs clearly appear to be tools of social management that can be indefinitely prolonged, bypassing all elected powers and representative groups.

This move towards seeking public accountability parallels the initial inspiration for the introduction of PILs in the judicial system. However, these collective actions target the courts as well as the administration or politicians, as the gap widens between the lack of effectiveness in redressing popular grievances and a growing awareness of the rights to which people, as citizens, are entitled.

Agnes, Flavia. New Delhi: Oxford University Press. Albornoz Vasquez, Maria E. Les Archives judiciaires en question. Anderson, Michael R. Appadurai, Arjun. Associated Press. Baird, Robert D. Religion and Law in Independent India. New Delhi: Manohar.

Bailkin, Jordanna. Bar Council of India The. Basu, Srimati. Oakland: University of California Press. Baxi, Pratiksha. Baxi, Upendra. The Crisis of the Indian Legal System.

New Delhi: Vikas Publishing House. Washington: East-West Center. Benda-Beckmann, Franz von. Rules of Law and Laws of Ruling. Farnham and Burlington: Ashgate. Benton, Lauren. New York: Cambridge University Press.

Berti, Daniela. Berti, Daniela and Devika Bordia, eds. Delhi: Oxford University Press. Farnham: Ashgate Publishing. Bhagwati, P. Bhargava, Rajeev, ed. Secularism and its Critics. Bhuwania, Anuj. Bordia, Devika. Bourdieu, Pierre. To that end, progressives should focus on nominating and confirming fair-minded judges with diverse backgrounds, rather than narrow-minded conservative elitists.

Given the breadth of the problem, however, policymakers also need to consider more far-reaching approaches, such as undoing conservative court packing, reducing the influence of partisan judges, and ensuring greater judicial accountability. In addition, efforts must be taken to ensure that the federal judiciary works for more than merely corporations and the wealthiest few. All Americans deserve a fair chance to bring their claims before federal courts, regardless of net worth or insider connections.

Barriers to justice—such as forced arbitration, arbitrary pleading standards, and other obstacles—must be eliminated. Restoring access to the courts is necessary to address corporate abuse and government wrongdoing, as well as to fully realize civil and economic rights.

Reforming the makeup of federal courts and improving access to justice are important and mutually dependent goals. Similarly, ensuring that federal courts are fair makes little difference if people are kept from having their cases heard. By implementing reforms in both areas—altering the makeup of the federal bench and improving access to the courts—the judicial system can be rebuilt and justice can be restored.

As partisanship has deepened and conservative court packing has picked up steam, reformers have responded by putting forth numerous recommendations for addressing these issues. Proposals have run the gamut from imposing term limits on federal judges and Supreme Court justices to changing the structure of the court itself.

To date, most of the debate has focused on whether significant reform is needed or wise. But to have a truly informed discussion, policymakers need a more detailed understanding of available options so that they can evaluate their strengths and weaknesses—and the extent to which suggested proposals are properly responsive to the problem at hand. In evaluating structural reforms to the Supreme Court and the federal judiciary, several factors should be considered.

Norm-breaking is discouraged by undoing its beneficial effects for the norm-breakers; if the beneficial effects are allowed to stand, lawmakers will continue to ignore legal and procedural norms when it suits them, without fear of repercussion. For instance, judicial reform proposals that accept the current packed Supreme Court as a baseline encourage further norm-breaking. Moreover, proposals that make it harder to overturn precedents established by the packed court do the same. Another important factor to consider is whether a specific proposal is likely to increase or decrease politicization of the Supreme Court, either because it creates more moderating influences on the court or because the influence of individual partisan justices is reduced.

Moreover, proposals should be evaluated as to the extent they would be stable over time. This includes assessing the risk that a proposal would result in escalating policy responses from those opposed to it and the likelihood that any attempted escalating response would be successful within a reasonable time period. Policymakers should also be attentive to the extent that the success of a proposal relies on adherence to norms, given the lack of such adherence in recent times.

When it comes to the various options for restoring fair-mindedness to the judiciary, the authors evaluate the following proposals:. A panel would be chosen at random from among the pool of all appellate judges and current justices, and that panel would hear and decide cases for a set time period, after which a new panel would be constituted. A separate panel would be responsible for reviewing and granting certiorari.

During this time, selected judges could temporarily vacate their positions on lower federal courts so that they would not be responsible for two full caseloads. Such a proposal would limit the ability of any one justice to exercise outsize influence, as they would hear and vote on only a limited number of cases. It would make it harder for ideological judges to drive certain views through the certiorari process, since it would be a different panel that would hear the cases.

In addition, it is possible that such an approach would lead to a more modest Supreme Court that more closely hews to precedent, given that the members would only temporarily be hearing cases as members of the Supreme Court before returning to their appellate circuits.

Rotating panels would also help prevent the judicial favoritism toward certain lawyers or groups that currently plagues the court. Ultimately, the result would be a fairer and more objective bench. Furthermore, rotating panels could help address diversity concerns. Although a number of circuit court judges attended Ivy League law schools, many did not, hailing instead from state and local universities. There is also the concern that, rather than eliminating politicization, this approach could actually expand it with respect to circuit nominations.

Nomination fights over appellate judgeships would be more intense given the greater influence any one appellate judge could wield as part of a Supreme Court panel. This proposal could exacerbate those fights and lead conservatives to try to appoint even more extreme nominees. In addition, this proposal would not address the harmful effects of conservative court packing to date since the precedents set by the current packed Supreme Court would remain, and likely prove much more difficult to overturn.

There are practical considerations as well. Establishing a rotating panel of Supreme Court justices could instill greater randomness into court decisions, causing significant swings in the law that would be detrimental to society as a whole.

It could lead to far too many Supreme Court precedents being overturned, or far too few. Furthermore, it is always possible that the composition of a randomly selected bench would end up being even more extreme or less diverse than the current court—though with the addition of a supermajority requirement for overturning statutes, the extent of the negative impact of such a panel would be lessened.

As a result, ideological majorities have been able to establish extreme precedent that hurts everyday Americans. To address this, the Supreme Court could be expanded to ensure an equal number of justices appointed by presidents of the two major political parties.

An evenly split Supreme Court would eliminate the unfettered power of ideological majorities and result in fewer extreme decisions, since it would require justices to compromise and engage robustly with those on the bench who do not share their ideological views. To reach majority consensus, justices would have to find middle ground or narrow the scope of their rulings.

However, an ideologically split Supreme Court would likely lock in many troubling precedents since it would be less likely that this newly formed court would reach consensus to overturn them. Some critics also worry that such an arrangement would effectively render the Supreme Court unable to operate and create problems with legal uniformity across the country.

But law professor and Supreme Court scholar Eric Segall argues that this fear is likely overstated:. One very significant concern with this approach is how to ensure that the balance would be maintained over time, given that it would either require presidents of both parties to honor the system or the partisan representation requirements to be written into statute, raising challenging legal issues.

One option is to have a bipartisan commission provide presidents with a list of potential nominees from which to choose. Another proposal along these lines is to expand the size of the Supreme Court to 15, with five justices appointed by a Republican president, five justices appointed by a Democratic president, and five justices selected unanimously or by supermajority from the lower courts by the other 10 members.

Requiring sitting Supreme Court justices to reach unanimous or supermajority consent on new appointees would help to ensure that only judges with moderate temperament round out the court, as they would have to be acceptable choices to most of the sitting justices. However, this proposal raises the same concern about how the balance would be maintained over time, and perhaps most importantly, there are serious questions as to how the 10 members could select the remaining five justices in a constitutionally defensible manner.

Another approach is to address conservative court packing head-on. In theory, this should not have been a problem, since Supreme Court justices had often been confirmed during times of divided government in the past.

An Obama nominee would have altered the balance of the Supreme Court so that, for the first time in nearly 50 years, conservative appointees would not be the majority on the court.

Jon Huntsman Jr. R-UT and former Sen. Even highly-contentious nomination battles in the past … followed the normal process of hearings and an up-or-down vote. The effort to steal this Supreme Court seat had real implications for the American people. During that time, it deadlocked on important cases, including one that would have prevented the inhumane deportation of immigrant families.

Justice Neil Gorsuch was appointed by President Trump and confirmed by the Senate on April 7, , securing conservative control over the Supreme Court. To address this conservative court packing, policymakers could seek to undo its effects by expanding the size of the Supreme Court under the next progressive president in order to allow for the appointment of additional justices.

Correcting prior partisan court packing has historical precedent. In , after Thomas Jefferson was elected president, the outgoing majority party in Congress—the Federalists—decreased the size of the Supreme Court from six to five members in order to prevent him from filling a vacancy on the court. The more well-known historical example, however, is that of former President Franklin Delano Roosevelt.

In , Roosevelt threatened to expand the Supreme Court from nine justices to as many as By stacking the court with appointees of his choice, Roosevelt hoped that New Deal policies would be implemented without delay. While Roosevelt faced significant political opposition to this proposal, shortly after announcing his intentions, conservative Justice Owen Roberts joined with the progressive justices in West Coast Hotel Co. This approach has the benefit of directly addressing the issues caused by conservative court packing, including harmful precedents established by the current packed Supreme Court.

However, there are worries that adding justices to the court could result in a judicial arms race between conservatives and progressives in which each side seeks to expand the size of the court when it has the ability to do so. If the court is expanded, it is possible—or even likely—that upon retaking power, conservatives would seek to further expand it.

At some point, a continued back and forth might lead to public frustration and concern. Therefore, compared with other reforms, this approach would likely be less stable over time and could potentially harden the recent politicization of the court.

The American public could also end up viewing the Supreme Court as nothing more than another political body, weakening respect for and trust in its rulings. This risk is likely heightened by the significant public attention that would attach to any effort to add justices. Moreover, adding justices would not reduce the significant role that chance plays in the makeup of the Supreme Court, as an unexpected vacancy could shift the power balance in the court to either direction.

But these concerns must be viewed in light of the current reality: Conservatives are already engaged in a massive court packing effort that has politicized the judiciary to an unprecedented degree. The question is not whether to pack the courts but how to respond to it. Moreover, they should consider that concerns about the court are likely to arise in the absence of any action too, as the conservative-packed Supreme Court overturns or undermines popular long-standing rights and democratically enacted laws.

It is worth noting that this proposal has application beyond the Supreme Court as well; given conservative efforts to pack the appellate courts, policymakers could adopt a similar approach to that issue by adding new circuit judgeships.

Setting term limits for Supreme Court justices and federal judges is a particularly popular reform among legal scholars and the public alike. Over the past years alone, average life expectancy in the United States has increased from an average of about 38 years to nearly 80 years. Supreme Court justices who served between and , on average, held their posts for less than 10 years, vacating the bench before the age of Congress does not necessarily need to pass a constitutional amendment to establish term limits for federal judges.

Rather, term limits may be established through simple legislation. A number of proposals for term limits have emerged over the years, but the most popular is for year nonrenewable terms. Alternatively, they could choose to be reassigned to one of the circuit or district courts.

Judges serving on other federal courts could similarly be delegated to senior nonactive status once their term expires. Regardless of their new posts, judges would retain their original salaries. And if they were to die or retire before their term expired, the sitting president would be empowered to appoint a temporary justice from the circuit or district courts to fill the open position until the term of the former justice was set to expire.

Once a permanent replacement was appointed, temporary judges would go back to serving on the federal court from which they came. This would help to avoid the problem of allowing a single president to dictate the makeup of the federal judiciary for a generation simply by entering office at an opportune time. To the extent this is a concern, however, term limits could be coupled with an expansion of the Supreme Court to ensure that no single president is able to appoint a substantial percentage of justices.

There are a number of benefits to term limits. They have the potential to increase diversity by allowing for new appointments while simultaneously diminishing the influence of any one judge, since judges would be cycled in and out more frequently. Term limits could also ease concerns over elderly judges with health problems presiding over cases late in life. However, term limits would not directly address the current partisanship on the Supreme Court and, given that most conservative justices were recently appointed, would not reduce the impact of conservative court packing.

They would also have the potential to increase partisanship and create conflicts of interest. One of the strongest arguments in favor of life tenure is that it insulates federal judges from such conflicts, especially from potential employers who come before their chambers.

Once they retire, judges could be prohibited from working on behalf of corporations or organizations, including subsidiaries, that were parties in any case they oversaw.

Judges vacating the bench should be required to recuse themselves in cases where potential employment has been discussed with one of the parties. Recusals should apply regardless of whether a hard offer has been extended. The more challenging issue is how to deal with judges who view their limited time on the bench as an audition for political office or some other position within the political ecosystem. It is not clear how to design recusal requirements to address this concern, and it could create an even more politicized judiciary than already exists.

In addition to these concerns, while some scholars believe statutory term limits pass constitutional muster, others disagree. For example, some scholars have suggested that instead of passing legislation requiring term limits, the president and Congress could refuse to nominate and confirm judges who do not formally pledge to serve limited terms.

No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost years after Washington. While this approach could work in theory, it would likely lead to substantial issues in practice. Nonlegislative options are open to significant risk of gaming, particularly in a hyperpartisan environment.

For instance, the only enforcement mechanism would be for Congress to impeach a judge that violates the commitment—a particularly challenging proposition. And any president could simply choose to ignore the requirement provided the Senate does not object. Given that the precipitating factor for discussing these types of court reforms is that partisans have repeatedly violated norms in the nomination and confirmation of judges, it seems unlikely that a reliance on norms would fix the issue.

Currently, the president has complete discretion over federal judicial nominations. Presidents often seek advice from trusted advisers and the U.

Department of Justice. President Trump, for example, made clear beginning in that he would nominate only Supreme Court justices who were recommended by the Federalist Society and would overturn Roe v. One way to minimize partisan influence over judicial nominations is to create an independent commission tasked with recommending qualified judges for appointment to the federal bench. The commission could be comprised of retired judges from the district and circuit courts, as well as representatives from the American Bar Association ABA.

Experts in judicial ethics could be appointed to lend an academic perspective on ethical trends and historical red flags. Similar commissions are used to appoint judges to courts in several states and other democracies. In addition to ensuring that judicial nominees are objectively qualified and even-tempered, the commission could help improve judicial diversity by placing an emphasis on recommending judges belonging to historically underrepresented groups with diverse backgrounds and experiences.

The judicial nominations process offers perhaps the most effective way to improve diversity on the federal bench. Former President Obama recognized this during his tenure in office. Of federal judges appointed by Obama, 42 percent were women and 36 percent were nonwhite.

While there are certainly benefits to an independent commission for nominating judges, there are also some real practical concerns to this approach. However, even this modified proposal has issues.