What role does the Supreme Court play in the American Political System?
What role does the Supreme Court play in the American Political System?
Perhaps it is no surprise that the country which contains more than half of the lawyers in the world also contains the most powerful court in the world : the Supreme Court. As the highest court in the land, the Supreme Court plays a major role in American political life, acting as the final court of appeal and the final arbiter of the ambiguities of the Constitution, giving it the power to overturn any law passed by any legislature in the country if it is deemed to be "unconstitutional". It would be wrong, however, to see the Court as simply ruling laws as "unconstitutional" or not, for its judgements on cases it has heard have had far-reaching effects on many Americans.
The Supreme Court was brought into being by Article 3, Section 1 of the Constitution, "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish". The Supreme Court was originally set up as part of the separation of powers in the American political system, with its independent executive, judiciary and legislature. It was not originally implicitly granted the power of judicial review by the founding fathers, but it could be argued that this power was implied. The Supreme Court actually gained the power of judicial review in 1803 in the case of Marbury v Madison, in which the Supreme Court of the time, led by Chief Justice John Marshall (who is credited in being the major figure in obtaining this power for the Court), declared Section 13 of the 1789 Judiciary Act unconstitutional, an act which Congress did not attempt to overrule. Judicial Review gave the Court the power to interpret the Constitution, and overrule any law or action by either the legislature or the executive which was not consistent with the Constitution.
Before examining what the Supreme Court actually does, it would prove illuminating to also briefly examine the structure and mechanics of the Court. To become a member of the Supreme Court, the candidate must be nominated by the President and confirmed by the Senate, a process which usually carries few problems but is by no means automatic. Once appointed, the Judges are there for life (or until they resign), but are totally independent. A President can (and does) appoint people of the same ideological persuasion, meaning that he can extend his influence on the upper echelons of American politics after he is no longer President. Judges are reliant on the President to nominate them but, once appointed, they are free of the President. There are numerous examples of Presidents regretting their choices of Judges, such as Eisenhower's appointment of Earl Warren (a prime example of someone holding different opinions on the Court than they were thought to have before they were appointed to it), but none have summed up their displeasure as eloquently as President Truman did about his 'uninspired' choice of Judge Tom Clark, "It isn't so much that he's a bad man. It's just that he's such a dumb son of a bitch. He's about the dumbest man I think I've ever run across...I never will know what got into me when I made that appointment, and I'm as sorry as I can be for doing it" (Miller in Bowles,1993:191).
By convention there are nine members of the Supreme Court, eight associate Justices and one Chief Justice, the current one being the conservative Judge Rehnquist. This number is not written in the Constitution, but it has become the convention. The last major challenge to this status quo was Roosevelt's 'court-packing' plan, which occurred when much of the economic sphere of the New Deal was blocked by the Supreme Court on the grounds of the government being to interventionist in the economy. His plan was to appoint an extra member of the Court for every member aged over seventy, bringing the number of Judges to fifteen, therefore making it possible for the new Judges to hold a majority over the old, conservative ones. This scheme was rejected by Congress, but the retirement of one of the conservative judges and a change of direction of the rest of the Court made this plan unnecessary and allowed Roosevelt's legislation to become law.
The last major stage of the mechanics of the Court is that of how cases actually come to be heard by the Court. Loren Beth (in McKay,1993:255) lists seven criteria for a case to be granted certiorari ("That act whereby the losing party in the lower court appeals the record to the Supreme Court so that the details of the case can be made 'more certain'" (McKay,1993:255)), of which the major ones are its constitutional significance, the way the lower courts have treated the case and whether there is a significant individual right involved. The problem with these ...
This is a preview of the whole essay
The last major stage of the mechanics of the Court is that of how cases actually come to be heard by the Court. Loren Beth (in McKay,1993:255) lists seven criteria for a case to be granted certiorari ("That act whereby the losing party in the lower court appeals the record to the Supreme Court so that the details of the case can be made 'more certain'" (McKay,1993:255)), of which the major ones are its constitutional significance, the way the lower courts have treated the case and whether there is a significant individual right involved. The problem with these criteria is that they are extremely subjective, and the emphasis given to the different criteria changes from Court to Court, and for an appeal to be granted certiorari four Judges have to agree to grant it. Nevertheless it is one of the better summings-up of the criteria for granting certiorari.
After having examined the mechanics of the Supreme Court, its role in the American political system must now be examined, commencing with its role as the highest federal court in the country. State legal systems across America can vary to a large extent, with the federal courts relying on a single set of regulations, with the Supreme Court at the head of this system. The federal courts are necessary as a unifier in the legal affairs of the country, with so many different legal systems also operating in the country, and the Supreme Court is necessary as any legal disputes between systems can be taken to it for clarification. Indeed, "without it, the country would cease to be a united nation state. Instead, a loose confederacy would prevail with each state going its way in economic and social affairs" (McKay,1993:251).
Aside from its role as the highest federal court, possibly the major role for the Supreme Court in American politics is that of interpreter of the Constitution, a power it assumed in Marbury v Madison (1803), as described earlier. This gives the Supreme Court much of its great power, for it allows it to strike down any law passed anywhere in the country if, in the view of the Court, it is not compatible with the wording of the Constitution. The Constitution is a short, ambiguous document, giving the Supreme Court considerable room to manoeuvre in its interpretation of the document, thus increasing its power, for if the Constitution was a very precise document, there would be little need for a Court to interpret it, meaning that one of its main reasons for existence would not be there. One of the main reasons for the ambiguities of the Constitution is so that it would always remain relevant, as its provisions could be re-interpreted without the whole Constitution becoming obsolete. The Supreme Court, then, is charged with keeping the Constitution relevant to present-day American life, a great responsibility when one considers that the Constitution provides the whole basis for American government.
It has been established that the Supreme Court has great power, but what actual authority does it have to make sure that its carefully-considered judgements are obeyed? In the words of Hamilton, in paper 78 of "The Federalist Papers", it "has no influence over either the sword or the purse...It may truly be said to have neither FORCE nor WILL but merely judgement". The authority of the Supreme Court is solely moral authority, as it has no immediate access to either money or troops. This can act as a major constraint on its actions, for if it was to make a series of controversial decisions, the other branches of government and the lower courts could just simply ignore the Supreme Court's decision, and there is absolutely nothing that the Court could do about it. It is in the interests of the Court to ascertain the public mood when deliberating on a major judgement, for having the weight of public opinion against it is an undesirable state of affairs for any area of government to have but, more importantly, the Court has to make sure that it does not antagonise another branch of government too much. Happily, there has not been a major challenge to the Court's authority in recent years, despite it having ruled against a President in this period (U.S. v Nixon (1974)).
The Supreme Court, though its moral authority is widely recognised now, has not been without challenges to its judgements, and one of the best examples of this is the Dred Scott v Sandford (1857) case. This case is one of the most famous cases in the history of the Supreme Court, as it was one of the main reasons for the Civil War. In this case the main issue was whether or not the southern states had the right to classify blacks in law as property and deny them citizenship. The actual case brought to the Supreme Court by Dred Scott, a slave, was whether a black slave could become a citizen of the United States by living in a part of the country where slavery had been forbidden by the Missouri Compromise of 1820. The Supreme Court ruled that he could not and "that the compromise (which prohibited slavery north of 36 degrees and 30 minutes) was an unconstitutional deprivation of property and a denial of due process of law" (Bowles,1993:268). Following the civil war, of which this case was a major factor in causing it, this Supreme Court ruling was overturned by two Constitutional amendments, the Thirteenth and Fourteenth, whereby slavery was abolished and blacks were allowed to become U.S. citizens. The use of an Amendment to overturn a Supreme Court decision is "the ultimate legal weapon available to the other branches and to the states"(McKay,1993:262). This course of action has only been utilised very rarely, with the 26th Amendment overturning Oregon v Mitchell (1970), enabling eighteen-year-olds to vote being the most recent.
Alongside all the aforementioned roles that the Supreme Court plays in the American political system, it also acts as the final arbiter in disputes, such as disputes between the President and Congress, the federal and the state governments and the individual against both the federal and the state government. The Court does not shirk from taking part in conflicts such as these, with U.S. v Nixon (1974) providing the best example. The main point of this case was whether executive privilege protected President Nixon from handing over his taped White House conversations so that they could be used against him both in impeachment proceedings by Congress and in the courts in their investigations of Watergate. The Burger Court ruled that executive privilege did not protect Nixon in this case and that he should give his recording. Ironically the Chief Justice of the time, Warren Burger, was a Nixon appointee, conclusive prove that the President cannot expect any preferential treatment from his appointees to the Court.
One major role fulfilled by the Supreme Court that perhaps should be the role of the executive or the legislature is that of making public policy. This is not true of every area of public policy but it is true of some central ones, including abortion, an area which is currently very contentious in American politics. The basis of the American position on abortion is Roe v Wade (1973), during the case of which the Supreme Court laid out the guidelines on which circumstances it was possible to terminate the foetus. Roe v Wade has provoked outrage among the pro-life lobby, with talk of a Constitutional Amendment to overturn the decision, but it was a difficult decision to make, with the pro-life and pro-choice lobbies ocuppying diametrically opposed opinions.
Another case of the Supreme Court making public policy is in Brown v Board of Education (1954), one of the most famous and influential cases in American history. Brown v Board of Education was concerned with the issue of segregation in schools, which had been legitimised by Plessy v Ferguson (1896). Earl Warren was the Chief Justice at the time, and it fell to his Court to decide whether to keep something which was seen as a way of life in the south and as morally repugnant in the north. Brown v Board of Education is a tribute to Warren's skill as a Chief Justice, and was the first major stage in granting civil rights to blacks. Plessy v Ferguson held that racial segregation in schools did not violate the Fourteenth Amendment, providing that the facilities were "separate but equal". Warren realised that this would be a momentous decision, and stressed the need for unanimity, for Brown v Board of Education was going to be an extremely contentious judgement if it ruled that segregation was unconstitutional. Unanimity proved to be difficult, with Justice Reed opposing the end of segregation until Warren finally won him over. Warren realised that it would take all of the Court's moral authority to make sure that the south did not refuse to implement it, so he made sure that the Court was unanimous in its support for the verdict and there was only one opinion on the case, which was drafted by him. Rosenberg comments that "for five decades, Brown v Board of Education has been the symbol of the Court's ability to produce significant social reform" (Rosenberg,1991:40).
Added to the Court's role in making public policy is its legislative role, of which the best two examples are from the Warren Court, and concern apportionment and criminal rights. The Supreme Court judgements in both cases set out new laws in both these areas before either the President or Congress had initiated legislation, creating a new role for the Court as not just a public policy maker, but a legislator also. The apportionment decisions of the early 1960s dealt with the size of Congressional districts and constituencies within the states. These decisions were unpopular with many politicians, for the Court extended the principle of representation according to mathematical equality to all the aforementioned constituencies. This removed the bias in representation towards rural areas and removed the large inequalities in constituency size that had built up over time.
In the area of criminal rights, it can be said that the Court moved ahead of public opinion by granting criminal defendants much greater rights than they had previously enjoyed. "Starting with Mapp v Ohio in 1961 and continuing through to ...1969, the Court handed down a remarkable succession of decisions granting defendants the right to state-provided counsel, access to police files, extending the freedom from unlawful search and seizure and generally providing much greater protection to arrested persons" (McKay,1993:269). In the case of criminal rights in the 1960s, the Court can be seen to have played more of a legislative role in the area than any other branch of government, showing its strength at the time and its ability to shift its role from case to case.
Considering the many different roles the Supreme Court has in American Politics and the extent of its power, it is an "apparent anomaly in a political system characterised more than any in Europe by the principle of electoral accountability" (Bowles,1993:166). Add this to large degree of majoritarianism in American politics then it seems unusual that the Supreme Court is unelected in a country where politics is characterised by the large number of elections there are. This came about because of the Founding Fathers' distrust for large-scale elections to every position of power and "the characteristically American cultural distrust of the unfettered exercise of power by politicians" (Bowles,1993:166). The Court's unelected role enables them to remain aloof from the day-to-day affairs associated with democratic politics, enabling them to remain aloof and dispense justice from a position where they do not need to satisfy a constituency who re-elect them every few years. Because of their life tenures Judges are allowed to follow a more independent line than a member of a party could. The only way they can be removed from the Court is by impeachment, as set out in Article 3 Section 1, "The Judges...shall hold their offices during good behaviour". They are paid a salary for their job, with a large pension so that they can retire from the Court and still live extremely comfortably. It also sets out on Article 3, Section 1, that their salary "shall not be diminished during their continuance in office", taking away from Congress the power to withhold their salaries if the Court passes a judgement which is not acceptable to Congress.
The Supreme Court fulfils many roles in American politics; legislator, arbiter, maker of public policy and interpreter of the Constitution. It is the most powerful court in the world, unelected in a system characterised by elections, with the power to subject every law passed in the nation to scrutiny. It is not unchecked, however, for public, congressional and public opinion holds it in check, for moral authority can only be sustained as long as there is no wholesale deviation from the norm. To conclude, the Supreme Court plays a pivotal role in the American political system, acting both as a part of the separation of powers and the system of checks and balances. Its day-to-day rulings may not arise much as much interest among the American people, but whenever a major, contentious issue needs to be resolved, the Supreme Court will usually play a role in determining it, for as Associate Justice Oliver Wendell Holmes commented (in McKay,1993:249) "We are very quiet there but it is the quiet of a storm centre."
Bibliography
Bowles, N : 1993
"The Government and Politics of the United States"
(Basingstoke : Macmillan)
McKay, D : 1993
"American Politics and Society"
(Oxford : Blackwell)
Hamilton, Madison & Jay : 1993 edition
"The Federalist"
(Guernsey : Everyman)
Rosenberg, G : 1991
"The Hollow Hope"
(Chicago : University of Chicago Press)
Spaeth, H & Smith, E : 1991
"The Constitution of the United States"
(New York : Harper Collins)
Barnum, D : 1993
"The Supreme Court and American Democracy"
(New York : St Martins Press)
Maidment,R & Tappin,M : 1989
"American Politics Today"
(Manchester : Manchester University Press)
