Primer: Supreme Court
The Supreme Court is the highest judicial body in the United States. It consists of nine justices, appointed by the President and confirmed by the Senate, and holds the power of judicial review, the ability to determine the constitutionality of laws and government actions. Established under Article III of the Constitution, the Court was designed to ensure the uniform application of federal law and to act as a balance on the powers of Congress and the presidency. By design, it is not a directly democratic institution: its members are unelected, serve lifetime terms, and operate at a remove from public opinion. As a result, many of its most consequential rulings have stood apart from prevailing popular or legislative attitudes, from Brown v. Board of Education to Citizens United v. FEC to Dobbs v. Jackson Women’s Health Organization. For this reason, there is some question as to whether or not the institution of the Supreme Court really supports the interests of the American people.
One reading of the question is whether the Supreme Court, right now, reflects the current ideological preferences of the American people. Yet the American people hold a wide and often conflicting range of political and moral beliefs. No institution could reasonably emulate all, or even most, of those opinions at once. For the question to carry any meaningful weight, the word “interests” must therefore be understood in a broader sense. It must refer instead to the loftier, more enduring welfare of the nation, those long-term conditions that sustain good political life. In this sense, the question concerns not whether the Court is mirroring public opinion right now, but whether it serves the deeper interests of the American people as a political community.
In this way, many critics of the Court take issue with the fundamentally undemocratic nature of its composition. After all, they claim, voters have no direct input on selecting justices and justices, who are appointed for life, have no incentive to take any input from voters. For this unelected body to wield such extensive authority — to strike down legislation, to limit executive power, and to shape the course of national policy — seems to some as a distortion of democratic governance as a whole. At the same time, the Court’s defenders contend that this independence from public opinion is essential to constitutional adjudication. Insulation from electoral pressures, in their view, enables justices to interpret the Constitution on the basis of legal principle, protect minority rights against shifting majorities, and preserve the rule of law against the rule of the mob. And, they claim, the undemocratic character of the Court’s composition is only reasonable, given that the law is an essentially specialized field that requires specialists not politicians.
Even the power of judicial review itself has its critics. The Constitution, after all, does not explicitly confer this authority. Rather, it was articulated by the Court itself in Marbury v. Madison in 1803, in which the Court claimed the duty to interpret the law and to set aside statutes that conflict with the Constitution. Critics describe this as a sort of self-bestowal that elevates the judiciary above the elected branches. When representatives enact laws, the Court may nullify them with a single decision, leaving citizens as bystanders to a constitutional conversation conducted largely by judges. To prevent this, other democracies have experimented with arrangements of power in which such final authority is shared. Canada’s Charter of Rights and Freedoms, for example, includes a legislative override, Section 33, allowing legislatures to reenact policies for renewable terms in spite of judicial objection. In the United Kingdom, courts may issue declarations of incompatibility without invalidating statutes, inviting a parliamentary response. These models seek to preserve the influence of courts while ensuring that the final word on public policy remains, in principle, with the people’s representatives.
On the other hand, defenders of judicial review counter that there still must be some mechanism to resolve constitutional conflicts and that the judiciary is the most sensible seat of that power. Judicial review, they argue, fulfills the role of constitutional interpretation while remaining constrained by precedent, procedure, and the possibility of constitutional amendment. Without such authority, the rule of law would yield to particular political expedience, and the meaning of the Constitution might be in the hands of the particular government in power.
Opposition to the Court’s authority is not without precedent in history. President Franklin Roosevelt’s 1937 proposal to expand the Court attempted to alter its ideological balance after adverse rulings on New Deal programs. During the Civil War, President Lincoln continued to suspend habeas corpus despite the Court’s opposition, asserting executive necessity over judicial constraint. Such episodes suggest that challenges to the Court’s power, whether structural or political, are neither novel nor beyond the bounds of democratic debate.
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"Supreme Court" by Scott is licensed under CC BY-NC-ND 2.0.