?Can the power of the Supreme Court be justified in a democracy? (25 mark) The Supreme Court is the only branch of government which is unelected and therefore unaccountable, but appoints members for life. These characteristics have been criticised for being out of place in a democratic country such as the United States; especially due to the power the Supreme Court has, such as the power of judicial review. However while it could be argued to have too much power, in a liberal democracy such as America it is necessary for the Supreme Court to function this way.
Overall the power of the Supreme Court can be justified in a democracy. The Supreme Court’s most important power is its power of judicial review; which is the principle by which courts can declare acts of either the executive branch or the legislative branch unconstitutional. When looking at the scope of influence that the court has had over many constitutional, social and policy-related issues, it is important to remember that this power is self-given and that the court has not derived this power from another branch or from the electorate.
In the case of Marbury v Madison, Chief Justice John Marshall established the power of the court to declare acts of Congress, actions of the president or any member of the federal executive, as well as legislation and actions of the state governments, unconstitutional. The Supreme Court has exercised this power, for example, to revoke state laws that denied civil rights guaranteed by the Constitution, which happened in Brown vs the Board of Education.
However, this power also gives them the ability to rule bills which elected bodies, such as the Congress and the President, have pushed for to be unconstitutional. Keeping in mind that the Constitution does not include the power of judicial review for the Court, it can therefore be argued that the Founding Fathers did not specify this power for a reason, and in reality the Supreme Court has over stepped its mark. Another reason for why it is suggested that the Supreme Court has too much power for a democracy is because of the way the justices are appointed, and effectively how they are unaccountable.
The Court has the ability to affect all of America with its actions, as shown by the decision in Gore vs Bush, which decided that Bush would become President after denying a recount of the Florida votes (a deciding state) which was very close. With this power and ability to make such crucial decisions, the Supreme Court should be made up of elected and accountable justices, instead of unelected judges who are appointed for life. In addition, the appointment process itself is heavily criticised, simply due to the influence of politics.
In the UK, for example, judges consciously avoid being political. However in the US the process itself means that the judges have to be known to be liberal or conservative in order to be nominated by the President and confirmed by the Senate. For example, Sonia Sotomayor was given an easy ride in her Senate Judicial Committee hearing because she was a liberal nominated by a Democrat President, and the chairman of the committee was a Democrat. Therefore, if the judges are political, even to a small extent, many argue they should also be elected and have term limits.
Otherwise, someone like William Douglas, the longest serving justice in history, can sit on the court and influence decisions for 36 years. Third, the Supreme Court has used its power to bring about change that has dramatically affected other aspects of society, with significant political implications. A key example of this is the Bipartisan Campaign Reform Act 2002. There was clear consensus from both parties in Congress and the President that money in elections was becoming a big issue, and this bill capped the limit corporations could donate.
However the Citizens Utd v FEC case ruled that that was unconstitutional, and therefore an unelected body prevented elected bodies from pushing through bills the people wanted. Subsequently this has increased the amount of money in elections; giving rise to so-called ‘Super PACs’ like Mitt Romney’s ‘Restore Our Future’ PAC, which raised over $100 million for his 2012 presidential campaign. It has also affected the number of campaign ads that voters are exposed to, as well as giving corporations the ability to use their general funds to produce ads supporting or opposing a candidate.
This sort of power is what critics of the Supreme Court argue is what makes it too powerful. However, while all the points above suggest that the Supreme Court has too much power with its unchecked, unelected and unaccountable judges, this is not a symbol of too much power; instead it is a necessity for a liberal democracy such as America’s. A liberal democracy is democracy where the rights of an individual are protected; this often means where the minority is protected from the decisions of the majority.
Therefore, if the judges were elected and accountable as the President and Congress is, those minorities would not be protected. This is because those judges would stop basing their decisions on the Constitution and precedent and more on the view of the majority, which could impede some minorities, in order to be re-elected. For example, it is highly possible that the US vs Windsor case could have ruled the Defence of Marriage Act was in fact constitutional, if the judges wanted to be re-elected, or the Roe vs Wade case may have resulted in the removal of the right for a woman to have an abortion.
By being unelected and having life terms they are free from political pressure and able to make decisions based on the law. This is why it is a necessity for the Supreme Court to be unelected, and is justifiable in a liberal democracy. Secondly, the view that no checks exist on the Court is wrong and this is one reason why the Supreme Court is not as powerful as suggested. The check of impeachment remains a significant check on justices, and while it’s never been used, Abe Fortas resigned from the court in 1969 rather than face impeachment when a series of ethics scandals erupted around him.
In addition to checks once they are in power, there are checks in the form of confirmation from the Senate. While these checks are often political and can often be weak, due to the increasing partisanship of the Senate it has become less likely for a nominee to become confirmed in recent times; with Bork being the most recent example. Even if they are nominated, the Senate Judicial Committee hearings are a good place to do the ‘litmus test’ of a nominee, to see what their view and opinions are on important cases such as Roe vs Wade.
Congress also has the power to initiate a constitutional amendment to negate the effect of a decision by the court. Also, while judges are meant to make decisions based on the law the reaction of the public is a factor, as the Supreme Court realises that it cannot get too far out of line with the views of the majority of ordinary Americans. A recent example of where the decision in a court case has sparked outrage is the not guilty verdict in Ferguson, Missouri in the shooting of Michael Brown; this in turn caused mass riots with building being set on fire.
Most importantly, the Supreme Court are ‘servants of the law’. Chief Justice Robert said that: ‘Judges and justices are servants of the law. They are like umpires. Umpires don’t make the rules; they apply them. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. ’ The Supreme Court is limited; it can only hear cases brought to it, and the number of cases it is hearing has been in sharp decline, now on average around 75. In addition, those cases that are brought to the Supreme.
Court have to be decided on the basis of the Constitution, statute law and precedent. This heavily binds the judges, whether they are strict or loose constructionists. In conclusion, there are several points both for and against the view that the power of the Supreme Court is justified, however it is justified. The Supreme Court’s self-given power of judicial review, coupled with the life terms of its members and their ability to interpret the Constitution that can result in controversial and significant decisions would suggest that it has too much power.
However, the Supreme Court has to be full of unelected judges with life terms with the power of judicial review in order for it to be an effective liberal democracy. The fact that the President and Congress has an strong say in who on the court strengthens this, as it is a good check to prevent unsuitable judges, and the other checks that exist also prevents abuse of power. Overall, the power of the Supreme Court can be justified in a democracy.