The Supreme Court, an institution responsible for providing equal justice under the law, contradicts this role in our current democracy. As the two other branches of government become more politically extreme to appeal to increasingly polarized voters, non-elected appointments of Supreme Court Justices have been used as a strategy to put those particular political agendas into action. In a case I examine, a president nominated Justice Alito to apply their personal beliefs and impose their agendas on future Supreme Court cases, avoiding the arduous legislative process of lawmaking. In some cases, long standing biases from Justices translate into strategic insertions of personal agendas in Supreme Court decisions that could contribute to eroding democracy in the role the judicial branch plays in the United States.
The executive and legislative branches in our democracy rely on the public voting politicians into office based on the political rhetoric that aligns with their beliefs. Politicians elected into these positions have the power of writing laws or upholding those laws on behalf of the people who voted for them, and they are more likely to continue representing the views of those who voted for them. Supreme Court Justices, however, are not elected but are appointed into their positions of power by the president and are approved by the Senate. The point of this is to have a branch of government that is not impacted by the popular mood or majoritarian opinion, thus taking more into consideration minority interests and protecting majority interests while establishing case law.
The majority opinions represented in the political sphere might not have an impact on Supreme Court Justices, but they have historically aligned with the current political mood of the time. In their article “The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions”, Willian Mishler and Reginald Sheehan expand on how public opinion connects to Supreme Court decisions. In a study they examined, it was found that between the 1930s to the 1980s Supreme Court decisions have been mainly congruent to majority opinions in politics. This is mostly the case due to the political significance that most cases between this time frame had as well as the advancement of social freedoms in the modern day, such as in cases like Roe v. Wade. Some recent cases of Supreme Court decisions question whether Justices are connected with the political mood of modern society and are making the best decisions based on constitutional analysis, or instead are making decisions based on their personal political beliefs.
In some instances, Justices have contradicted themselves in Senate hearings and finessed their way onto the Supreme Court to instill case law that aligns with their personal beliefs, as well as policy agendas for the President who nominated them. Take, for example, Justice Samuel Alito. Justice Alito was nominated by George W. Bush, a president who was expressly anti-abortion. Back when Alito was working as a lawyer for the Reagan administration, he wrote a memo stating that the right to abortion should not be constitutionally protected. During Justice Alito’s Senate hearing, however, Alito claimed that he was a fierce supporter of abortion rights and stare decisis, further explaining how Roe’s reaffirmation in subsequent cases strengthened its legitimacy. When questioned about his contradicting opinions made while he was a lawyer, Alito explained that he was writing simply what his bosses wanted to hear and that his opinion has matured since then.
His opinion did not mature. In 2022, Justice Alito wrote the majority opinion in Dobbs. V. Jackson Women’s Health Organization, which overturned Roe and Casey v. Planned Parenthood and called these decisions “egregiously wrong from the start.” He further wrote that “its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepend division” (United States Supreme Court). Alito makes several contradictions in writing this majority opinion. First, he clearly does not respect stare decisis as he claimed he did in 2006. Second, he blatantly misled Senators in his hearing in order to gain an opportunity to bring his true intentions to fruition. As soon as he had a chance to overturn Roe, he constitutionally justified implementing his personal belief of abortion policy onto the books of the Supreme Court.
Public opinion should not sway the Supreme Court’s decision on any case, but personal opinions should never be accepted in interpretations of the Constitutions and in deciding Supreme Court cases either. As Justice Alito stated in his Supreme Court hearing, public opinion should never impact the Supreme Court, and this is the purpose of the Supreme Court in terms of balancing the two political branches of government, but Alito applied his opinions of Roe that he made as a lawyer to his decision in Dobbs as a Supreme Court justice. While this causes a regression in abortion rights, this decision also threatens a regression in the strength and legitimacy of Substantive Due Process under the Fourteenth Amendment, creating the potential to overturn other landmark cases such as Loving v. Virginia, Griswold v. Connecticut, Obergefell v. Hodges, and others.
Whether or not the Supreme Court is political or takes political ideals into account when deciding on cases is heavily debated, and yet recent decisions lead to the conclusion that some Justices have based their decisions on personal agendas and justify them through constitutional law. In “How to Lose a Constitutional Democracy,” Aziz Huq and Tom Ginsburg examine the subtle way in which America is potentially experiencing democratic backsliding through constitutional retrogression. Huq and Ginsburg express how certain aspects of the judiciary are weak in preventing constitutional retrogression, such as the tendency to defer to political branches to keep checks on undemocratic practices and limited constitutional checks on exclusionary electoral practices. They also note a “bipartisan drift towards greater presidential control over the bureaucratic resistance to the antidemocratic project of constitutional retrogression,” signifying a more robust presidential authority over the appointments of Justices (Huq 152). This form of democratic erosion is incremental and could be avoided, but weaknesses of the Constitution against constitutional retrogression as defined by Huq and Ginsburg, including a lack of incentives for the Court to engage with public opinion and increasing control that the presidency has on Supreme Court appointments, does not particularly help sustain democracy against constitutional retrogression.
The Supreme Court has the potential to erode democracy by using its powers to alter constitutional precedents, or fail to check undemocratic practices that infringe on peoples’ rights. Justice Samuel Alito represents an instance where a Supreme Court Justice used his position to establish case precedents that follow his personal beliefs on abortion. It is true that the Supreme Court is a crucial aspect of American democracy to balance out the other two branches of government susceptible to influence by public opinion, but its undemocratic qualities have the potential to be left unchecked and abused to impact democratic erosion.
Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)
Huq, Aziz, and Tom Ginsburg. “How to Lose a Constitutional Democracy.” UCLA Law Review,
Mishler, William, and Reginald S. Sheehan. “The Supreme Court as a Countermajoritarian
Institution? The Impact of Public Opinion on Supreme Court Decisions.” The AmericanPolitical Science Review, vol. 87, no. 1, 1993, pp. 87–101