When liberal icon, Supreme Court Justice Ruth Bader Ginsberg, died at the age of 87, less than two months before an already contentious and dramatic presidential election, the future of the United States fundamentally and rapidly shifted. And with the nomination and appointment of her replacement, Justice Amy Coney Barrett, conservatives secured the coveted 6-3 majority in the highest court in the land, moving the court to the right for a generation. The death and replacement of one person in one role in the US government changed possibly the entire future of the nation. How did this country get to a place where an individual (or nine of them) have such unprecedented power? And what implications does the Supreme Court have for democratic representation in the US? The answer is more complex than it seems. The federal judiciary has a unique and ever-evolving position in American politics, the strength of which has been intensified by increasing polarization over the last few decades, and it, like a number of American political actors, must often balance the boundaries of democracy with the smooth functioning of government.
BACKGROUND: JUDICIAL REVIEW
The power of judicial review, the right of the courts to determine whether any legislation is constitutional, was established almost at the beginning of the nation when the second-ever president John Adams did what many fear modern democrats might do—he packed the court.
The Judiciary Act of 1801 not only added judges, but it created entirely new federal courts and gave the president control over their appointment. Adams was acting out of blatant political self-interest. He had just lost an election to his political enemy, Democratic-Republican Thomas Jefferson, and he was attempting to fill the federal government with as many of his own party, The Federalists, as he could before leaving office. One of the appointees, William Marbury, who was meant to be the Justice of the Peace in the District of Columbia, had not received his commission before Adams left office. He and a group of other appointees in the same situation petitioned the new Secretary of State James Madison to deliver the documents and the ensuing court battle changed the rest of American history (Marbury v Madison).
It’s also important to note that the framers of the Constitution were incredibly, almost purposefully unclear about what the Judicial branch was responsible for and how it should function. Article III of the Constitution, which deals with the Judiciary, is barely 5 paragraphs long. It establishes a “supreme court” and acknowledges that Congress may create “inferior courts” as they see fit (U.S. Const. art. III, § 1). It also gives the Judiciary control of a variety of types of cases, including “all Cases, in Law and Equity, arising under this Constitution” (U.S. Const. art. III, § 2). Despite the astonishingly broad mandate of the Courts, they were notably not granted an enforcement mechanism of any kind. They had no teeth until Marbury v Madison changed everything.
John Marshall, the Chief Justice at the time, wrote the majority opinion in favor of Marbury, saying that Marbury was entitled to the commission. However, he did not force Madison to issue the commission because he argued that the Supreme Court did not have the power to issue a writ of mandamus because the section of the Judiciary Act that was used to bring Marbury’s claim to the Supreme Court conflicted with the Constitution (Marbury v Madison).
Though this decision is seemingly inconsequential, it did something unexpected and legally brilliant. It established that the Judiciary had the power to declare something Unconstitutional; in other words, judicial review. The Court now had broad power to strike down laws and decide political fates, far more than the framers of the Constitution seemed to intend.
It may sound originalist to discuss what the framers intended and how far the Court’s power strayed from the enumerated powers in Article III. However, it is not the framer’s intent that matters here. What matters is that the Judiciary, specifically the Supreme Court, an unelected body of judges who serve life terms, now decides much more than it is Constitutionally and legally equipped to. Through a series of political decisions and random legal circumstances, the Supreme Court has been given ultimate legal authority over almost every piece of legislation in the United States.
Today, more than 200 years later, modern Americans are paying the consequences. In the aftermath of Justice Barrett’s confirmation, Americans increasingly fear their reproductive rights and discrimination protections being threatened. According to democratic erosion scholarship, reproductive and minority protections are elements of liberal democracy, and these rights are today directly threatened by a group of unelected judges with no term limits (Lieberman, et. al, 2017). The power of the judiciary in the US to either protect or seriously threaten civil rights and individual liberties jeopardizes democracy, and, while it may seem that the US Supreme Court rocketed to the forefront of partisan politics rather suddenly, Republicans in Congress have been focused on the power of the courts for years. Senate Majority Leader, Mitch McConnell, who has largely been credited with the conservative transformation of the courts, has been fighting battles over circuit court seats and senate confirmations for decades. Thanks to McConnell, Trump began his administration with more power than possibly any president before. By the end of only a single-term presidency, Trump will have appointed at least 200 federal judges, around a quarter of the bench, and 3 Supreme Court Justices. And while Trump was the one with this power, McConnell was the one who gave it to him. The president admitted as much in an interview with Bob Woodward in 2019, saying “You know what Mitch’s biggest thing is in the whole world? His judges” (Herb & Gangel, 2020). Since the Republicans flipped the Senate in 2014, McConnell has been systematically blocking lower-court appointees so a future Republican President would have open seats to fill. This gave a president shocking power over the judiciary, which is necessarily insulated from democratic control.
The power of judicial review has often been viewed by political scientists as a check on executive power, a less partisan, less reactive older brother to the more political branches. In recent years, however, the American judicial system has become less of a check on power than a check on democracy. An increasingly unproductive Congress has left the nation’s business up for grabs, and it has often fallen into the hands of nine unelected judges. Once thought to be above partisan infighting, the Supreme Court is now a game of political majority, with justices delineated by party and each new appointment treated as an extension of their party rather than a legal scholar in their own right. The very legitimacy of the court has been shaken.
JUDICIARIES AND DEMOCRATIC EROSION
This increasing polarization in the courts has had far-reaching effects on American democracy, not only changing the way we legislate (or, rather, don’t) but shifting the norms our democracy has come to rely on. Democratic norms, though they are not enshrined in law, are a set of beliefs and behaviors that reinforce or characterize a democracy (Lieberman et. al, 2017). While these norms are less official than rules or legal doctrine, “these institutional restraints are only as strong as the norms that emerge to undergird them, binding political leaders to routinized patterns of behavior and instilling in citizens expectations about how democratic governance is to be carried out” (Lieberman et. al, 2017, pp. 20). While norms are not the only (or even the most important) indicator of democracy, their destruction is absolutely an indicator of its erosion, and the increasing partisanship and governmental power of the judiciary certainly don’t bode well for the United States.
The slow shift away from liberal democracy is a phenomenon gaining more and more attention from political scientists in recent years. Democratic erosion takes many forms, but the US judicial system illustrates what political scientist Ozan O. Varol describes as stealth authoritarianism. Stealth authoritarianism, as Varol argues, “creates a significant discordance between appearance and reality by concealing anti-democratic practices under the mask of law” (2015, pp. 1685).
Varol also argues that judicial review, though it is often thought of as a check on power, can be effectively utilized by stealth authoritarians to hold onto power through what he calls the “insurance model of judicial review.” In this case, the judiciary can be used by a leader afraid of losing power to continue to enforce their policy goals. In other words, “even if the political elites lose power, unelected judges continue to enforce the elites’ policy preferences via judicial fiat” (Varol, 2015, pp. 1687).
The recent actions of both Donald Trump as president and Republican Congressional representatives illustrate this phenomenon in action. Throughout President Obama’s final term, Senate Majority leader Mitch McConnell refused to confirm many of his judicial appointments. That meant that the next president, Donald Trump was able to fill the judicial branch with those who support his policy agenda. He appointed a whopping three justices to the Supreme Court alone, and his lower court appointments, though less public, are still crucial to Trump’s political agenda.
NECESSITY: THE MOTHER OF INVENTION
The supreme court isn’t a bad organization, in fact, it is a vital facet of the functioning of American government, but the growth of polarization, as well as the changing political context, has necessitated a shift in the way it functions.
It is instructive to first think about why the Supreme Court is useful. First and foremost, though the founders’ fear of so-called mob rule was based in exclusive definitions of citizenship and no small amount of classism, it is not entirely unwarranted. Not only is the American electorate often woefully uninformed, but the right thing governmentally is often not the popular thing democratically. For example, landmark civil rights cases such as Brown v Board of Education allow for individual rights to be granted at will rather than having to pass possibly unpopular federal legislation or having a patchwork state-by-state system of legal standards. Also, because justices are unelected, they are able to make legal determinations without fear of unpopularity.
Another important function of the courts is as a check on executive and legislative power The phrases, “Courts blocked” or “a federal judge blocked” have become commonplace in news today to describe the judiciary hindering legislation— often unconstitutional or constitutionally problematic legislation. For example, Donald Trump’s executive order banning travel from several Muslim majority countries was blocked in court several times Certainly, it is true that the courts serve an essential purpose in American government. The law obviously needs judges, but the current system has been poisoned by flaws, some newly evolved, some fundamental, such that it requires significant reform in order to continue to function for liberal democracy.
The death of Justice Ginsberg and confirmation of her replacement illustrates that the court’s lack of term limits has placed an extreme burden on the lives of justices and may even cause them to stay on the court longer than they are able in order to gain partisan advantage.
The court was built in part to protect minority viewpoints, but it has become an avenue to undemocratically assert power over the majority. The US system has changed before. The Senate wasn’t always elected by the people, but then the 17th Amendment was passed.
The nation must reckon with its current, more democratic orientation. The fear of mob rule is less as the electorate gains more and more access to education and the conception of democracy itself has shifted. Adding term limits to the Supreme Court may sound like an extreme move but shifts in US governance happen all the time. Even abolishing the electoral college is not as big a move as one might think. Richard Nixon himself actually advocated doing so. Additionally, if the legislative branch ran more smoothly, the court would no longer be in the position of having to govern, reducing the incredible power they have gained, and placing legislation back in the hands of the voters.