'The Supreme Court has too much power for an unelected body' Discuss

By S.D

‘The Supreme Court has too much power for an unelected body’ Discuss

The third branch of the federal government is the judiciary, which enforces and interprets the law. There are three tiers of courts the trial courts, the appeal courts and the Supreme Court. The latter court is most important; its members hold office for life in addition to this it has the authority to interpret the Constitution. The Supreme Court is both a judicial and political body. The framers of the Constitution wanted to ensure that the judges, or justices of the Supreme Court would be truly independent of both the executive and legislative branches, this is in line with the principle of separation of powers. Justices of the Supreme Court are appointed not elected this is because they wanted the Court to be beyond the control of the electorate. The framers wanted a genuinely independent Supreme Court that would settle legal disputes without fear of possible reprisal.

There are nine member of the Supreme Court, the number is fixed by congress and has remained unchanged since 1869. These members are appointed by the president and must be confirmed by the Senate. The members hold office for life ‘during good behaviour’ (Article III, Section 1), but can also be impeached, tried and removed from office by Congress; otherwise justices leave the Court only by voluntary retirement or death.

Article III of the Constitution deals with the judiciary power of the American system of government, it makes the US Supreme Court the nations highest judicial body. However, it says nothing about a political role for the Court. It does not say that the Supreme Court has the power to declare legislation or executive branch policies unconstitutional. This power over federal and state legislation has changed the court from being a judicial body into a major political force in the American system of government. This has shown that the Supreme Court although unelected has an immense amount of power.

The doctrine of judicial review empowers the Court to declare any law or action of a governmental institution to be unconstitutional; again, this is a highly significant power. The power of judicial review extends beyond constitutional interpretation. The Supreme Court also adjudicates alleged violations of federal laws by state laws or by the actions of private organisations. This is known as Statutory Interpretation. The difference between constitutional interpretation and statutory interpretation is that Congress can amend the law to nullify the Courts decision if it is based upon statutory interpretation. On the other hand, if a courts decision is based upon constitutional interpretation, then congress has no power to overturn it. Therefore, a decision of the Supreme Court based upon constitutional interpretation is final, unless the Court can be persuaded to change its mind. From this, it can be concluded that the Supreme Court, as the final court of appeal, is superior to both the Congress and the president in matters of legislation and public policy.

However, although the Supreme Court may have an immense amount of power for an unelected body but it must be remembered that it is not all-powerful. There are many practical restrictions on the power of judicial review. This power of judicial review however is not mentioned by the constitution. The Court ‘found’ the power for itself in the case of Mabury v Madison (1803) whereby Chief Justice John Marshall made a declaration concerning the status of the Court and the Constitution which has been considered binding ever since. The Supreme Court has the right to undertake judicial review of ...

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If the Supreme Court declares a law unconstitutional, it has no force and must be set aside and if there is conflict between any ordinary law and a constitutional law, the latter must prevail.

The first time that the Supreme Court declared an act of Congress unconstitutional was in the case of Mabury v. Madison. Since then the Supreme Court used this power on hundreds of occasions- during periods of judicial restraint and at other times more frequently during periods of judicial activism. By using its power of judicial review, the Court can update the meaning of the words of the Constitution, most of which were written over two centuries ago.

The nature of the Supreme Court and its use of Judicial review ensures that the Constitution is always evolving this is illustrated in the following constitutional cases;

The Supreme Court has been described as the guardian of individual and civil rights. Its role in the ‘civil rights revolution’ of the 1950s and 1960s is often emphasised. In the 1954 Brown case, the Warren Court began the process of desegregating schools in the southern sates. It declared that ‘separate educational facilities are inherently unequal’

In recent decades, the Supreme Court has handed down judgements of great political significance on issues concerning civil rights and liberties for example:

Brown v. The Board of Education of Topeka (1954): the court declared a law of the state of Arkansas to be unconstitutional because it transgressed the ‘equal protection’ clause of the 14th Amendment. It led to the desegregation of schools across the USA. The court declared that ‘Separate educational facilities are inherently unequal’, overturning its 1896 (Plessy v Ferguson) ruling of ‘separate but equal’.

In the case of Swann v Charlotte-Mecklenberg Board of Education (1971), the Court addressed ‘de facto segregation’- the continued existence of predominantly black, white or Hispanic schools and mandated the busing of school students across cities so that there was a greater degree of racial balance within each school. Furthermore, in Roe v Wade (1973), the Court declared that women had the constitutional right to an abortion.

The case of Baker v. Carr (1962), however, illustrated the ability of the Court to interpret constitutional principles broadly. The fifteenth amendment states that there must be equal voting rights for all and in this case, there was a claim that electoral boundaries were being a manipulated to favour one political party- this is known as gerrymandering. It was considered that this gerrymandering denied certain voters equal rights, since they were disadvantaged by the artificial creation of the electoral boundaries. Because of this liberal interpretation of the constitution, a new political principle was established this required that the creation of electoral boundaries be seen as neutral and fair to all parties.

Those cases prove that the Supreme Court has a huge amount of power. In fact, some commentators, such as Raul Berger, believe that the courts are too powerful. He asserts that the Supreme Court has made rulings that go far beyond the Constitution. On the other hand, others argue that the federal Courts have only limited power.

The federal courts are limited in their ability to enforce their rulings. They are dependent upon the compliance of those whom the rulings. They are dependent upon the compliance of those whom the ruling affects, or require the backing of the executive branch. The events that followed the case of Brown v Board of Education illustrates this, the ruling called for desegregated schooling, implementing this required the use of troops. In 1957, President Eisenhower sent troops to the Central High School in Little Rock, Arkansas to ensure that nine black students could attend classes alongside whites. Further to the limitations of the Supreme Court is the fact that the Supreme Court has no power of initiative. It is an appeal court and can only react to cases that are submitted to it.

Congress has powers over the federal courts. It has the ability to alter the number of judges, both on the Supreme Court and in the lower courts. Moreover, if Congress feels that the courts have misinterpreted the laws, it can amend its own statutes to clarify its intentions and wishes. Congress can in effect limit the remedies available to the courts. This certainly proves that the constraints imposed upon the Supreme Court limits its power. Congress being widely recognised as the most powerful legislature in the world is the first branch of government, acts as a figure of supervision, and wields power over the courts. Furthermore, congress and the states can initiate a constitutional amendment if they oppose a ruling by the Supreme Court, although this is a difficult process.

Federal courts deal with only a relatively small proportion of cases. They consider approximately 2 per cent of all the cases brought in the United States, this is the case because most criminal cases involve breaches of the state rather than federal law. There is no possibility of the Supreme Court having too much power, furthermore the Court has to take note of public opinion as its legitimacy depends upon its popular credibility. An example of the importance of public opinion would be on the issue of Capital punishment, in Furman v. Georgia (1972) the Court decided that the death penalty, as then imposed, was a ‘cruel and unusual punishment’, and thereby violated the 8th Amendment. However, in Gregg v. Georgia (1976), the Court retreated from its original position and now the majority of states now include the death penalty in their statutes.

The Supreme Court may be an unelected body but the fact is that the judges are appointed, all federal judges are appointed by the president with ‘the advice and consent of the Senate (Article II section 2). Judges are expected to be legally qualified, have practised law, and have had judicial experience. It has been found that the president will usually appoint those who share his political and judicial philosophy, that is why an appointee is usually associated with the same party as the president. There is a general acceptance that there should be at least one woman, a black, and a Catholic on the Court. Thurgood Marshall, the first African –American, was appointed in 1967. Sandra Day O’Connor, appointed by Reagan in 1981, was the first female justice on the Supreme Court.

Although the Senate has traditionally accepted presidential nominations, there are times when confirmation cannot be assured. So far eleven have been rejected and other nominations had to be withdrawn or postponed. An example of which would be that of Robert Bork, a justice of the DC Court of Appeals and a leading advocate of judicial restraint. A widespread public campaign was organised against him, and the Senate defeated the nomination by fifty-eight to forty-two votes.

Using its power of judicial review, the Supreme Court has involved itself in a large number of political issues and can as a result be seen as a ‘political body’ as its members are appointed by the President (a politician) and confirmed by senators (politicians). Appointments to the Supreme Court became an issue in the 2000 presidential election. In the case of George W. Bush v Albert Gore (2000), the Court ruled the recount in Florida and the given time constraints as unconstitutional, as a result the Supreme Court was seen by some members of the public to be handing the election to Governor Bush.

Overall, the Supreme Court has a great deal of power but the fact is that they are merely interpreting the Constitution. They do not make decisions based on their own beliefs. The Supreme Court does not have too much power for an unelected body. It is true that the power to reinterpret the Constitution in the light of changing societal needs can amount to the power to amend the Constitution but they are subjected to checks by Congress and by the president. The House of Representatives can impeach justices and the Senate, try them and if found guilty by a two-thirds majority, remove them from office. Congress also has the power to initiate constitutional amendments, thereby seeking to overturn judgements of the Court with which it disagrees. They also have the power to alter the number of justices on the Court, the Supreme Court has no say in this whatsoever and therefore does not have the huge amount of power that it is accused of having. The Supreme Court being an unelected body is given a fair amount of power; it is unlikely that they would be given an extortionate amount of power. However, if this were to occur or if they were seen to have an unnecessary degree of power Congress and the President could curb this by imposing constraints e.g. the President could criticise it openly as President Bush did over flag-burning in 1990. Alternatively, Congress can initiate Constitutional amendments.