Why Sweden needs a U.S.-type Supreme Court

President Obama has nominated Elena Kagan to fill the newly vacant seat in the U.S. Supreme Court. Kagan is more or less a liberal replacing a liberal, but she has working strongly for the rights of homosexuals which is expected to give her some problems among the Republican Senators who will approve her. However, as the Democrats has 59 seats they have a necessary majority to approve her, and only need one more vote to avoid delay-tactics such as a filibuster (continuous talking until the session time in the Senate ends). It will be interesting to see whether any of the not-so-Conservative Republicans will vote with the Democrats and make Obama's an easy and uncontroversial process. The Republicans has been anything but bi-partisan since Obama took office, and much points to the same thing here. But more on that another time.

The Supreme Court holds a very special place in American politics compared to other Western nations. It is an important part of the system of checks and balances between the executive (the White House), the legislative (Congress), and the judicial. In general the system of checks and balances makes passing legislation more difficult, especially large and groundbreaking legislation. The role of the Supreme Court is to check whether laws are unconstitutional or not, to make sure laws do not oppose the intentions of the U.S. constitution. The highlighted word is very important here as it often gets thrown around, misused and abused. The Supreme Court has through history guaranteed a woman's right to abortion (Roe vs Wade) and ended law-regulated segregation in American schools (Brown vs Board of Education). On the other end of things, it is responsible for the difficulties to regulate U.S. gun laws, as it so far has been seen as an infringement of individuals' rights to carry firearms, as guaranteed by the constitution. It in general makes sure that the rights of Americans are guaranteed.

Sweden so far has not had an equivalent of the U.S. Supreme Court, although the Justitekansler (JK) is supposed to guard individuals' constitutional rights and Lagrådet checks whether laws can be threatening to the constitution. Neither of these have worked very well though, or have been used that often. Lagrådet has acted when a law that would forbid protesters to mask or shield their faces in demostrations, and the law never passed. JK has been seen as quite a toothless and has not been able to act when the rights of individuals have been abused (for instance by government authorities). This is a central theme in the oh so popular Millenium-triology by Stieg Larsson, where I must admit the idea to this blog-entry came from. I don't know whether I argue for U.S. style Supreme Court for Sweden; as has been mentioned the political systems and realities of the two nations are very different and conditions can not easily be translated from the one to the other. However, Sweden would need something that better guarantee the rights of individuals against abuse and guards the ideals of the constitution, such as free-speech. However I twist and turn this issue I wind up seeing a necessity for some sort of Supreme Court with more responsibilities and abilities than both the Lagrådet and JK. Surely, it would not have same political weight as the U.S. one, as the Swedish constitution does not have the same huge importance that the U.S. does. If possible, a Swedish Supreme Court would need avoidance of the partisan politics that has plagued nominations and discussions of the U.S. Supreme Court. That can largely be avoided if politicians aren't eligible, but only lawyers, as these are not involved in politics at all in the same manner as in the US.

This could create a strong important judicial organ which would hold over shifting political majorities. Sweden has so far been reluctant to incorporate ideas and systems from American politics, and often with good rationale. But a Supreme Court might really be a thing to consider.