Topic Of The Day” How Crucial Constitutional Questions Are Being Fought In The Highest Courts In The World’s Largest Democracies”
If a baker refuses to make a wedding cake for a same sex couple citing his religious beliefs, is that an exercise of religious liberty or a case of discrimination against homosexuals? The Colorado Civil Rights Commission in the U.S. ruled it was a case of discrimination. The baker moved the U.S. Supreme Court where he also argued that his refusal also involved a question of the freedom of expression. Creating a wedding cake was an artistic expression and he would not do that in support of a homosexual wedding.
The U.S. Supreme Court reversed the Colorado commission’s order, in June, on the narrow grounds that its procedures were tainted by an animus towards the baker’s faith. The court, however, did not rule on the questions of religious liberty, the freedom of expression and discrimination raised by the case — which are sure to come up in the future. The Indian Supreme Court is seized of the conflict between a religious belief and charges of discrimination in a case on Sabarimala, the Kerala temple where women of a particular age are not allowed entry.
When questions such as these come up in the context of executive or legislative action or inaction, it becomes the task of the judiciary to test them against the Constitution. There is a long-running debate in the U.S. on how the judiciary should interpret the Constitution. One school of thought, the originalists, believe that the constitutional text ought to be given the original meaning or intent that it would have at the time it was written. The evolutionists believe that the Constitution is a living document and the meaning of its text changes over time, as social attitudes change, and that the judges should interpret it accordingly.
Building A Legacy
U.S. President Donald Trump’s two picks for the Supreme Court (in less than two years in office) come from the originalist school. Justice Neil M. Gorsuch and Brett M. Kavanaugh, Mr. Trump’s second nominee who awaits Senate confirmation as Supreme Court justice, came through the ranks of the Federalist Society, founded in 1982, by American conservatives and libertarians to promote originalism. Behind the smokescreen of his Twitter outbursts, Mr. Trump is building a legacy that could outlast his presidency by decades, through appointments to the higher judiciary. Unlike in the case of his foreign and trade policy, the entire spectrum of the American right wing, and the Republican Party, is solidly behind the President’s attempts to reshape the country’s judiciary. The Trump administration supported the baker’s argument in the Supreme Court.
As of July, Mr. Trump has successfully appointed 43 judges, which includes Mr. Gorsuch, 22 appeals court judges and 20 district judges. Barack Obama and George W. Bush had each appointed only nine appeals court judges at this point in their presidencies. Dozens of more Trump nominees are awaiting Senate confirmation. Mr. Trump inherited a huge number of judicial vacancies from the Obama presidency, as the Republican-majority Senate had slowed down appointments. It even refused to consider a Supreme Court nomination made by Mr. Obama, and the vacancy was filled only with Mr. Gorsuch’s appointment.
Mr. Trump’s nominees are not only almost entirely originalists but they are also far less diverse than the cohort of judges appointed by Mr. Obama. Only 10% of Mr. Trump’s appointees are racial or ethnic minorities; he has nominated one Hispanic and one black so far. Bringing in the highest share of non-whites in the judiciary in the history of the country, Mr. Obama had appointed 58 blacks, 31 Hispanics and 18 Asians over eight years. Out of the 324 judges he appointed, 116 were minorities. According to a Pew analysis in March, the proportion of female judges appointed by Mr. Trump was half as many as appointed by Mr. Obama. And 60% of all sitting federal judges in America are white men.
Tensions In A Democracy
Judges are not impervious to public opinion but they are not meant to be its slaves either. They do not need to win popular votes This one layer of insulation from instant public opinion enables the judiciary to be the guardian of the fundamental values of the society, which too change but over a longer period of time. The tensions between the legislative or executive branches and the judiciary are unavoidable, and to some extent desirable, in a democracy .Varying degrees of judicial review provide a way to negotiate a balance between public opinion and values in democratic societies. In India, the judiciary can review even constitutional amendments.
When a society is in the midst of conflict over its elemental values, such tensions become more fraught. The legislative and executive branches are quicker in responding to people’s will and often, shaping it. When Franklin D. Roosevelt was legislating New Deal measures in the 1930s, the American judiciary threw a spanner in the works. The President sought authority from the U.S. Congress to appoint six new justices on the Supreme Court. The Supreme Court began to relent, and scaled back its resistance to the New Deal, and a populist takeover of the judiciary was averted.
India also has seen a similar phase, when the judiciary resisted progressive legislative measures such as land reforms in the early years of the republic. Those tensions continued all the way until an equilibrium was reached, with the Supreme Court establishing the concept of the basic structure of the Constitution in the 1970s. Roosevelt and India’s Congress governments were pushing for redistributive measures. At the core of the tensions between the judiciary and the more political branches was the search for a balance between justice and liberty, a perennial source of conflict in a democracy.
A Turbulence Within
It is one thing to expect the judiciary to be cognisant of evolving notions of rights and justice in a society, but quite another to demand the remaking of the judiciary in accordance with a majoritarian agenda. “The power granted to American courts to pronounce on the unconstitutionality of laws (is)… one of the most powerful barriers evererected against the tyranny of the political assemblies,” Alexis de Tocqueville wrote on American democracy. The Trump movement and his judicial appointments seek to bend the judiciary to majoritarian pressures. Reshaping of the judiciary has been a core component of Mr. Trump’s populist agenda and his campaign speeches. Originalism implies the intent and meaning of a group of white, Christian men who wrote the country’s Constitution. Crucial questions on affirmative action, voting rights, immigration, abortion, religious liberty and homosexuals will be reviewed by the U.S judiciary in coming years.
The turbulence within the Indian judiciary and in its relations with the political executive and the legislature could also be seen in the context of the ongoing populist project to reshape the country. A judiciary dismissive of the popular will could disrupt the balance of power among the branches; but a judiciary subservient to majoritarianism will certainly undermine democracy.
MEANINGS AND WORDS
1) discrimination
Meaning : the unjust or prejudicial treatment of different categories of people, especially on the grounds of race
Tamil Meaning : பாகுபாடு
Synonyms : favoritism , bigotry
Antonyms : equity
Example : “victims of racial discrimination”
2) artistic
Meaning : having or revealing natural creative skill.
Tamil Meaning : கலை
Synonyms : decorative , imaginative
Antonyms : uncreative
Example : “my lack of artistic ability”
3) conflict
Meaning : be incompatible or at variance; clash.
Tamil Meaning : மோதல்
Synonyms : competition , combat
Antonyms : peace
Example : “parents’ and children’s interests sometimes conflict”
4) interpret
Meaning : explain the meaning of (information or actions).
Tamil Meaning : விளக்குவது
Synonyms : construe
Antonyms : confuse
Example : “the evidence is difficult to interpret”
5) allies
Meaning : a toy marble made of marble, alabaster, or glass.
Tamil Meaning : கூட்டாளிகள்
Synonyms : colleague , associate
Antonyms : friend
Example : When my friends were arguing, Carly was my ally and defended my actions
6) intent
Meaning : determined to do (something).
Tamil Meaning : நோக்கம்
Synonyms : decided , resolved
Antonyms : flexible
Example : “the government was intent on achieving greater efficiency”
7) Senate
Meaning : the smaller upper assembly in the US, US states, France, and other countries.
Synonyms : body , chamber
Example : “the senate must ratify any treaty with a two-thirds majority”
8) outbursts
Meaning : a sudden release of strong emotion.
Tamil Meaning : வெடிப்பு
Synonyms : burst
Antonyms : calm
Example : “an angry outburst from the prime minister”
9) diverse
Meaning : showing a great deal of variety; very different.
Tamil Meaning : பல்வேறு
Synonyms : differing , varied
Antonyms : same
Example : “a culturally diverse population”
10) ethnic
Meaning : relating to a population subgroup (within a larger or dominant national or cultural group) with a common national or cultural tradition.
Tamil Meaning : இன
Synonyms : indigenous , national
Antonyms : nonracial
Example : “ethnic and cultural rights and traditions”
11) mutually
Meaning : with mutual action; in a mutual relationship.
Tamil Meaning : பரஸ்பரம்
Synonyms : commonly
Antonyms : dissimilarly
Example : “adoption and fostering are not necessarily mutually exclusive alternatives”
12) averted.
Meaning : turn away (one’s eyes or thoughts).
Tamil Meaning : தடுக்கப்பட்டுள்ளது.
Synonyms : deter , fend off
Antonyms : aid
Example : “she averted her eyes while we made stilted conversation”
13) perennial
Meaning : lasting or existing for a long or apparently infinite time; enduring or continually recurring.
Tamil Meaning : வற்றாத
Synonyms : chronic
Antonyms : ceasing
Example : tly infinite time; enduring or continually recurring.
14) evolving
Meaning : develop gradually.
Tamil Meaning : சிறிது சிறிதாக மாறிவரும்
Synonyms : expand , emerge
Antonyms : leave
Example : “the company has evolved into a major chemical manufacturer”
15) tyranny
Meaning : cruel and oppressive government or rule.
Tamil Meaning : கொடுங்கோன்மை
Synonyms : autocracy
Antonyms : democracy
Example : “refugees fleeing tyranny and oppression”
16) erected
Meaning : put together and set upright (a building, wall, or other structure).
Tamil Meaning : அமைத்தது
Synonyms : boosted
Antonyms : lowered
Example : “the guest house was erected in the eighteenth century”
17) dismissive
Meaning : feeling or showing that something is unworthy of consideration.
Tamil Meaning : நிராகரித்து
Synonyms : cocky
Antonyms : humble
Example : “monetarist theory is dismissive of the need to control local spending”
18) subservient
Meaning : prepared to obey others unquestioningly.
Tamil Meaning : கீழ்படியும்
Synonyms : deferential
Antonyms : disobedient
Example : “she was subservient to her parents”
19) undermine
Meaning : erode the base or foundation of (a rock formation).
Tamil Meaning : கீழறுக்க
Synonyms : cripple , blunt
Antonyms : assist
Example : “the flow of water had undermined pillars supporting the roof”
