Many countries have constitutional courts; the politicians appoint the judges to decide on constitutional matters.
Such courts have enormous power. Therefore, in the US the appointment of Supreme Court Judges is always an incredible political fight between Democrats and Republicans.
The US the Supreme Court has the power of “judicial review”. This means it decides whether a law or executive action is constitutional. Many other representative democracies have similar courts.
In a direct democracy, no court decides if a law is constitutional. For example, in Switzerland, Article 190 of the Swiss Constitution states: “The Swiss Supreme Court may not invalidate federal legislation for inconsistency with other parts of the Constitution”.
In Switzerland, it is the people themselves who decide which law will stand. They also decide when and how to change the Constitution.
This means the Swiss Supreme Court does not have the power to affect the lives of citizens like the US Supreme Court does.
This is not surprising; Swiss politicians also have a lot less power than US politicians, and than politicians in other representative democracies. The Swiss Supreme court has no power to make the decisions the US Supreme Court makes, or the power of other Constitutional Courts.
It is unimaginable in Switzerland that the Swiss Supreme Court could make decisions such as the following:
In 1803 the US Supreme Court decided that itself is the ultimate authority on what a law means in relation to the Constitution; Marbury v. Madison (1803).
The people of the US tacitly accepted the decision; they did not vote to validate it. We will never know if they really agreed.
Many more US Supreme Court decisions have changed America without the people having a say. It is not very democratic to do that, to change a society without the explicit consent of the people. No wonder what we see now in US society…
Another example is Brown v. Board of Education (1954)
The Court decided racial segregation of schools violated the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.
I am not saying the decision is wrong; I agree with it. But it is not the issue in our discussion if it is right or wrong, the issue is that the people did not decide. In a democracy, they should.
It is not democratic to have the judges decide on matters of such great importance to society; only the citizens should decide.
If most citizens in a society lack the sense of fairness or maturity to decide by themselves, by referendum, it will not save such society a group of judges appointed by the politicians. The politicians themselves will not do it either; only the people can keep democracy and society going.
In fact, a Supreme Court, any Supreme or Constitutional court appointed by politicians, makes intrinsically undemocratic and politicized decisions. It is much better to have the people decide.
For example, we see how the US Supreme Court looks like an extension of the Republican and the Democrat party. That is why the parties fight tooth and nail to decide if the new judge should be “progressive” or “conservative”.
One adverse effect of the situation is that any decision the US Supreme Court makes is evaluated along political lines.
Constitutional courts in other countries are not too different from the US Supreme Court.
In Switzerland, a direct democracy, Swiss Supreme Court judges are also appointed by the politicians. The key difference is that Swiss politicians and Swiss Supreme Court Judges have far less power than the people, the people are in control.
In a direct democracy, there is no Supreme Court to decide constitutional issues; the people decide them by referendum. The referendum is far less politicized than the Supreme Court. This is so because when people vote on issues, ideological lines are far less rigid.
Another important factor that makes direct democracy more democratic than representative democracy is how the Constitution can be modified.
In a direct democracy, the people directly change the constitution, not the elected representatives.
In a direct democracy, a group of people collect the required number of signatures, this enables them to propose the change to all citizens. The citizens then decide through a national referendum. In representative democracies, this is not possible; they have very limited use of referendums and none has provision to change the constitution at the initiative of the people, by the people.
For example, in the US, it is the politicians, the elected representatives, who can decide changes to the constitution, the people have no say at all. Most other democracies are like that.
I believe the way the US Supreme Court works, and how the US modifies its constitution, are two important factors contributing to the alienation and polarization we see now in the US.
The current polarization between Mr. Trump and his opponents, and between his supporters and those who support Mr. Biden and Mr. Sanders, is not the problem but the symptom of the root problem; not enough democracy.
