In 2000, during the American presidential elections, the role of the Supreme Court was highly contested. Indeed, it consists of a majority of judges appointed by republican presidents and it decided to stop counting the voices manually in contested towns in Florida and George Bush won the election. From this very simple example, we can understand the importance the judges may have in everyday life. That's why we have to pay attention to the role of courts and judges in our democracies in detail. First, we need to define what a court is. It is a kind of deliberative assembly with special powers to decide certain kinds of judicial questions. It will consist of parties and their attorneys, bailiffs, reporters and sometimes a jury. A court is a place, used by a power base to adjudicate disputes and dispense civil, labor, administrative and criminal justice under its laws, something we may call a "public forum".
[...] II/ No, they are public forums Courts as warranties of individual freedom - The benefits of judicial activism in the protection of rights Judicial activism is strongly criticized, but we forget that it may often be beneficial. The Constitution of the USA, as many constitutions, enumerates certain rights but not all are the rights of people, as it is said in the ninth amendment. Judges may guarantee individual freedoms not explicitly written in the Constitution. Then, judicial activism is a necessary intervention when representatives fail in cases involving laws that discriminate against minority groups that can be affected by the majority of the democratic process and where there has been a violation of equal protection. [...]
[...] By making Federalists judges that would serve for life Adams was trying to keep Jefferson and his party from changing things too much. Adams notably appointed William Marbury as justice of peace. According to the procedure, the Senate received the nominations of the new justices of the peace and confirmed them on March Adams's last day in office. To reach his goal, the President had to sign commissions empowering each man to hold office, and the secretary of state was supposed to place the official seal of the U.S. [...]
[...] Roosevelt Sometimes, judges have broken the legislator's decisions because of an ideological opposition to him, as the Supreme Court did at the beginning of the 20th century, when it opposed Roosevelt and the New Deal. Roosevelt wanted a stronger intervention of the state in the economy. Judges first opposed him, but rapidly they gave up because of the popular will, because Courts have the vocation to be democratic institutions and to be as modest as they can. Judges can be reproached for being too subjective but as Robert Badinter said: prefer a government of judges to a government without judges”. [...]
[...] In addition, the judges act on constitutional law, taking it before it has been passed (the law is generally considered a priori and in abstracto). In the US, the article III of the Constitution establishes the Court as the top of the country's judicial branch, making it equal to the executive branch (the president) and the legislative branch (Congress). In conclusion, the judiciary is extremely powerful and diffused in the US. Is there a government of judges? Is there a judicial usurpation of politics? [...]
[...] Courts and judges are connected with the civil society and are open to public opinion. Judges don't live in another world, they communicate with their environment. Some people speak of a government of judges when they cancel decisions taken by the legislator. Therefore we may wonder if Courts are democratic institutions which are the place of the judge in the democratic process. Montesquieu saw judges as the mouths of law, but when you see the complexity of some cases, judges are inevitably led to interpret laws when it is not precise enough, so as to create the law, thus becoming a co- legislator. [...]
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