Is the Supreme Court TOO Powerful?
When we think of the Supreme Court today, this idea of a court system sacred to the origins of our government based in the foundation of our country comes to mind. Nine people that spend almost the entirety of their lives making decisions that will affect the entire country and its people for years to come. Without context, that seems like a lot of power given to these nine appointed justices, but even with context does the distribution of this seemingly tyrannical power still make sense? How did the Supreme Court even get to be this way? If we knew its origins and how it really worked would we still feel that the whole system should remain as it was? Or would we start to consider that it might need changing?
Let’s take a look at how it all began. We are gonna go all the way back to the late 1700’s. The Supreme Court in the late 1700’s to early 1800’s was absolutely nothing compared to what it is today. They had very little power and pretty much no say in impactful cases, they even met in the musty Congress basement. Part of the reason for this was because while The Constitution went on and on about things like the presidency and the legislative branch, it only spoke very briefly about the Supreme Court, a little less than three paragraphs dedicated to the highest court in the land.
How Did It Become What It Is Today?
The Supreme Court as you know it today began with two famous second cousins, John Marshall and Thomas Jefferson. These two cousins absolutely despised one another, for two reasons. One being that John Marshall's mother-in-law romantically rejected Jefferson and he never got over it, but the second and more important being that they were in opposite political parties. Jefferson was a Republican and Marshall was a Federalist. Flash forward to the year 1800, when Jefferson had just won the presidency and Adams was on his way out. At this time, the house and presidency were both going to be republican, so Adams (the departing President) and Marshall (the current Secretary of State) conspired to somehow keep at least one branch of the government Federalist. They landed on the Supreme Court, the previous Chief Justice had just passed, so they appointed Marshall to fill his place, Marshall took the position almost in spite of Jefferson because at the time, being a Supreme Court justice was not nearly as big of a deal as it is today. And remember how The Constitution didn’t say much about the Supreme Court? Well, Marshall and Adams took advantage of that, “Congress creates 40 (Supreme Court) judges at the last minute, and then he appoints 40 judges at the last minute.”(Savitsky; WNYC Studios, More Perfect) That’s right, forty new Supreme Court justices. At the time, not all commissions were sent to these appointed judges, but they ignored that detail and went on their way.
And The Infamous Controversy Begins…
Jefferson then takes office that January and realized the scheme that Adams and Marshall pulled, and canceled the Supreme Court for a whole year in 1802. Let’s just take a minute to acknowledge that our famous United State’s President Thomas Jefferson simply got rid of the Supreme Court for an entire year because it wasn’t quite to his satisfaction. When the Court resumed in 1803, things began to run as normal until Jefferson and his Administration found these unsent and forgotten commission papers that we mentioned earlier, and demanded that everybody who never received one had to leave and step down from their position as a Supreme Court justice. This did not bode well amongst all of the members of the Supreme Court, but especially with one particular member, William Marbury. Marbury filed a lawsuit with Jefferson over his unsent commission paper and took the case directly to the Supreme Court. This began the famous case of Marbury V Madison. Marshall and his court all agreed that Marbury deserved that commission but Marshall realized that the Supreme Court didn’t not have enough authority to rule in favor of Marbury. He knew that Jefferson would immediately ignore the ruling and set the Supreme Court even farther back in its progress towards power.
So, Marshall did some digging and released his decision document to Jefferson saying basically, look, you would have won the case, but technically the Supreme Court doesn’t have the power to make a final decision. The reason for this being that the Constitution states that all cases brought to the Supreme Court must be brought to a lower court first, and this case just wasn’t. He then continued to write this phrase, the SupremeCourt has the power to “say what the law is”. When Jefferson signed this document that one phrase became official, allowing the Court to determine cases constitutional or unconstitutional. Those five words hidden in the text of a single document gave the Supreme Court the power it has today. Think about that! The Supreme Court was almostnothing and then it became everything because of that one phrase.
To get more details on this; listen to this podcast made by WNYC studios; RadioLab's More Perfect.
Checks & In-balances
The Supreme Court was not only given power over our entire nation, but also over much of the government process. Uscourts.gov says, "(The Supreme Court)plays an essential role in ensuring that each branch of government recognizes the limits of its own power." (uscourts.gov) The judiciary branch plays a role in regulating the power of the executive and legislative branches to ensure that they do not gain or maintain more power than the others. A checks and balances system, but while the Supreme Court has the job of keeping the other branches in check, who is to say that the Supreme Court itself doesn't have too much power? The Supreme Court has been given the power to declare laws made by the legislative branch unconstitutional and to declare presidential acts unconstitutional. Cornell’s Legal Information Institute says, “... the role of the Supreme Court in policing the maintenance of the two doctrines is problematic at best.” (Cornell Legal Information Institute) The only "checks" that the executive and legislative branches are involved in toward the judiciary branch is appointing and confirming justices. They don't evaluate the system entirely, just the people that flow in and out of it. So, yes, the members of the Supreme Court are being checked by the two other branches, but is it the members of the Supreme Court that contain all of this power, or is it the entire system itself? As we all know, Supreme Court justices change over time, meaning that they only have the power to make such large decisions for a period of time, this goes to show that it’s not the justices themselves that hold all of this life-changing decision making capability, but the Court that we have deemed worthy of this unmatched power.
Does The SupremeCourt Uphold Democracy?
Another important question that can be raised is why… why does the Supreme Court hold the ability to make all of these major verdicts? The government claims it as follows, "it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities." (uscourts.gov) The values of the Supreme Court differ very much from a democratic government, it allows the people absolutely no say on impactful issues and is filled with older Justices that may havelost their connection to the citizens they represent. We the people have no say in who is appointed, whether they're confirmed, and on top of that, we also have little to no voice when it concerns Supreme Court cases. The whole point of the Supreme Court is that they are not swayed by popularity or the political side of the issues that they rule on, but is that always a good thing? For example, Roe V Wade, the women of our country (who the case's verdict would in turn affect the most) had absolutely zero say in the decision of the case.
Cases brought to the Supreme Court are there for a reason, they are always controversial, and they always concern a large group of people that usually aren't involved in the verdict. Like Roe V Wade or Obergefell V Hodges (the case brought to the Supreme Court concerning the legality of same sex marriage). In these situations there are so many peoples’ lives that hang in the balance while the verdict is still being discussed, yet all of the people have no voice in the matter. Executive Vice President of The Heritage Foundation claims, "We are, quite simply, losing our sovereign power to govern ourselves."(heritage.org)
It can be argued that since we elected the President into office that that is our way of second handedly appointing a Supreme Court Justice, but what about close election races? In the 2016 election of Clinton vs. Trump, Donald Trump won by 74 electoral votes, and actually lost the popular vote by about three million votes. Then, in the beginning of Trump’s presidency he appointed Justice Brett Kavanaugh. When looking at the numbers of the election results, we see that 48% of Americans didn’t prefer Donald Trump as a presidential candidate to begin with, and 48% of Americans disagreed with Trump’s Supreme Court nominee. So, can the argument of electing the president connecting to choosing Supreme Court justices hold in this case?
We now know why the Supreme Court holds so much power today, but why do they get to have so much power for their entire lives and why do they serve lifetime appointments? The simple reason is, The Constitution, it states: "shall hold their Offices during good Behavior." Which basically means that once appointed, they choose when they leave, they die, or they are impeached. The reason this phrase was put into the Constitution was, “This makes Supreme Court justices free to issue rulings based on the law, rather than political favor.” (Meltsner, Northeastern Law Professor). They didn't want Presidents to be able to know when they were going to be allowed to appoint a justice so that they could stack the court and involve their political beliefs and biases in the Supreme Courts’ rulings. The real question here is, have we truly been able to keep politics out of the Supreme Court? Cato Institute claims,“… politics has always been part of the process. From the beginning of the republic, presidents have picked justices for reasons that include balancing regional interests, supporting policy priorities and providing representation to key constituencies.” (Cato Institute) That being said, could more frequent change in justices be a better thing? How could we make it so that it still followed our Constitution’s original idea?
A Potential Solution
Term limits could be a risky idea considering presidential political bias, like we mentioned earlier, but what if there was another way to put limits in place? Staggered term limits, Meltsner, a law professor at Northeastern, says, “Congress would need to find a way to stagger term limits so that one president ‘doesn’t get to dominate the court,’ they would have to be staggered in some way so that a president would not have the ability to fill the entire Court with whoever they please.” (Northeastern Article) With this solution as a possibility reforms may seem attainable, but are they necessary? Let’s just take a quick step back to completely immerse ourselves in the reality of our Supreme Court. Nine people that had the ability to determine whether a woman could have an abortion, or whether two people of the same sex were allowed to get married, these nine justices are making decisions on the behalf of 330 million other people. Americanprogress.org states,“...the 18-year term would be staggered so that a vacancy would open every two years. This would make certain that each presidential term would bring two new justices—helping to ensure the court reflects the general public.” (americanprogress.org) Could this idea create a better future for our court system and for the people of our country?
So - is the Supreme Court Too Powerful?
When it concerns deciding whether or not the Supreme Court is too powerful there are a lot of angles to be taken into consideration, arguments to be respected, and questions to be asked. Just because the Supreme Court has existed for so long and has had this immense amount of power and influence for so long, doesn’t mean that we shouldn’t put some of the founding ideas and concepts into question. We even know now that the Supreme Court wasn’t all-powerful for all of its existence and our United States Constitution doesn’t even mention much about it. It’s lifetime appointment policy is questionable and it’s participation in the checks and balances system isn’t necessarily balanced. But there are alternatives and solutions that we could take into consideration to moderate that power.
We’ve looked at the evidence and can see that there are and have been a lot of controversial ideas surrounding the power of the Supreme Court. So could reforms and changes be a good thing? Could the Supreme Court potentially be more powerful than is justified? Is the Supreme Court, in fact, too powerful? The answer to that question is beyond the scope of this paper. But perhaps we should be asking more questions about the power the Supreme Court holds, or be considering alternatives to lifetime appointments, or be thinking about how the Supreme Court came to the power it has today and how that power affects us. Just because the Supreme Court has had this all-reigning power for so long, doesn’t mean that we shouldn’t put some of that power into question. In fact, could we even confidently say that the Supreme Court’s norms and processes would hold up in the Supreme Court itself today?