Those are all explicitly anti-democratic institutions! You can argue that we’re not a democracy, but rather a constitutional republic, and those are appropriate checks on democracy. But that is a different argument.
It’s important to keep the terminology straight so you can think of the situation clearly. To address the mass deportation hypothetical: judges are very different from the people. They are cognitive elites with degrees from elite institutions. Insofar as judges interpret laws to check deportation efforts—for example, expansively interpreting the criteria for asylum, which they have done—you should understand that what’s happening is a conflict between voters on one hand, and elites who are far more sympathetic to immigration.
In a functional democracy, these anti-democratic checks should be maintained within their proper scope. For example, judges should avoid allowing the pro-immigrant sympathies of their class to color their legal opinions.
Something I just realized that might be germane to this little discussion: I am European, not American.
We often use the word "democracy" as the vast eco-system underlying and upholding modern liberal societies in general, not just the elected parts. Whether that's correct use of the word - I suspect you think it's not - I leave open for discussion. If you want I can use the narrow definition in which case we are mostly in agreement.
Judges should exercise due caution and be mindful of their obvious biases.
However, this works both ways. Officials cater to their often not so well-informed electorate and this group, The People, is as susceptible to biases - if not more - as the so called elites are. Both should exercise restraint and be mindful of their biases, not just the judiciary. It takes a populist to claim The People are always right.
As you can tell I am also very much an amateur. I suggest you don't approach me as someone who has studied political science because I'll have a hard time keeping up.
I didn’t know this was something europeans did, because it’s alien to how americans historically have used the term. During the founding, there were explicit debates about democracies versus republics. The Democratic party originated as what europeans might call a “populist” party. And over time we changed the original constitutional structure to make it more democratic and less of a republic (such as direct election of senators).
> People, is as susceptible to biases - if not more - as the so called elites are. Both should exercise restraint and be mindful of their biases, not just the judiciary. It takes a populist to claim The People are always right.
But the biases of people are legitimate, while the biases of the elites are illegitimate. If the people vote for mass deportations, for example, the only job of the elite should be to figure out how to do it efficiently while protecting legally recognized rights (but not trying to undermine the policy by invoking protecting rights as a pretext). As usual, the scandinavians have figured this out.
I can see how it is a possible source of confusion which is something we can ill afford in this already treacherous waters.
> But the biases of people are legitimate, while the biases of the elites are illegitimate.
> [...]
> while protecting legally recognized rights
Agreed, provided that by "elites" we mean the branches of government not just "successful people". I guess we're mostly in agreement. I'm just cranky about The People because in my country they are quite ... self-destructive, but that is a topic for another time.
Since you asked further up-thread about the distinction between "democracy" and "populist", I want to point out that your comment is actually a pretty good example.
A little-d democrat might argue that the legal system not being immediately responsive to the expressed policy preferences of the majority of voters is anti-democratic. But a populist argument would add that this discrepancy is because judges as individuals are members of an elite class entirely separate from the common people because they're smart and went to school and stuff.
The populist argument here is an unnecessary rhetorical flourish. The platonic ideal spherical judge of uniform density rules entirely based on laws that by definition do not immediately change based on the results of elections. The idea that judicial rulings may at times oppose popular opinion as expressed in the most recent election should be taken as a given when the system is working as intended, whether that's democratic or not, rather than as evidence of ideological opposition from judges as individuals. But in populist framing, everything must be in terms of elite opposition to the common people, so arguments about the inherent inertia of the legal system are insufficient.
Populism vs democracy aside, I'd also argue that at least in the US, the federal judicial branch is no less democratic than the legislative or executive branches. There are plenty of avenues for the voters to change the outcome of legal decisions. They can vote for representatives who will change laws, Presidents who will nominate different judges to the bench, and there is even a democratic process to amend the Constitution. Of course none of those processes are quick or obtainable with a simple majority at a moment in time, but by that standard the legislative and executive branch don't fare much better. Voters can choose the President, but they only get to do so ever four years regardless of how they feel about the President's actions at any point in those four years unless they can meet the incredibly high bar of impeachment and conviction. There's a distinct lack of responsiveness there as well.
Those are all explicitly anti-democratic institutions! You can argue that we’re not a democracy, but rather a constitutional republic, and those are appropriate checks on democracy. But that is a different argument.
It’s important to keep the terminology straight so you can think of the situation clearly. To address the mass deportation hypothetical: judges are very different from the people. They are cognitive elites with degrees from elite institutions. Insofar as judges interpret laws to check deportation efforts—for example, expansively interpreting the criteria for asylum, which they have done—you should understand that what’s happening is a conflict between voters on one hand, and elites who are far more sympathetic to immigration.
In a functional democracy, these anti-democratic checks should be maintained within their proper scope. For example, judges should avoid allowing the pro-immigrant sympathies of their class to color their legal opinions.