With recent discussion in the news surrounding the potential adoption of an “ethics code” or other code of conduct for the US Supreme Court, the question of its role in US democracy is once again a hot topic of conversation. Since last year’s overturning of Roe v. Wade, as well as the continuous use of the court as a political tool by recent political administrations, public opinion of the court has been soured. While the court’s importance to the US government’s functions cannot be understated, the question of its role in fostering or harming US democracy ought to be explored, for improvements upon the system to emerge in the future.
Of the 3 branches of the US government- executive, legislative, and judicial- the latter is the only one where citizens do not directly elect its primary members. While the democratic processes of the presidential and congressional elections can be scrutinized, there is at least some form of expression of people’s will when they are elected. The court, in contrast, is at best indirectly influenced by the people’s will, through their appointment by the elected bodies. The original intent behind this was multifaceted, but generally, the court was meant to act as a neutral, nonpartisan entity, which would prevent potentially corrupt lawmakers from undermining the principles the country was founded on. In today’s United States, this problem has turned on its head, and the court itself is now representative of corrupt lawmakers, rather than any will of the people. The court routinely blocks and strikes down policies preferred by US citizens- free healthcare, abortion rights, taxation reform, and dismantling monopolies are all wildly popular among Americans, but not among the court (nor the rest of the US government). The dogmatic way in which the court functions, blindly following the perceived wishes of the founding fathers or building upon the back of previously erroneous decisions to justify further error, has a dubious role in democracy, especially within an ever-evolving legal system. Instead of existing as the bulwark against corruption and oligopoly in the US government, the Supreme Court has historically and especially recently been the bulwark against change, progress, and democratic reform in the US government, and its existence as-is prevents any meaningful change occurring through the Constitution or the government as a whole.
This post is not meant to argue that the Supreme Court ought to be abolished- such a notion is completely unserious. However, there is a strong argument to be made regarding the current state of the court and its role as one of many barriers in the US between the voice of the people and actual policy. When discussing democratic erosion, many see the weakening or potential abolition or weakening of a Supreme Court as a key symptom of democratic backsliding, and therefore something to be avoided for functional democracies. But when discussing a Supreme Court wielding excessive power, as can be observed in the US, then weakening a Supreme Court can serve as something healthy for a democracy. This is, of course, premised on the idea that the strength of the Supreme Court is where the issue lies. But this is not necessarily the case- a strong court can be a boon in the correct circumstances, wherein it would be necessary to prevent corruption as originally intended. The trouble can be found in the way that Justices on the Supreme Court are chosen, and how that interacts with the current state of the US government.
In recent years, few would deny that the US government, specifically the two ruling parties, Democratic and Republican, have become increasingly polarized. Elections across the country, both on a federal and state level, have become contests of which side can successfully demean the other more effectively. Through this two-party system, the nuance of political opinion and expression across the US is forced to boil down to the broad labels of liberal and conservative, despite the often illiberal nature of the ‘liberal’ party, and the anti-conservative tendencies seen in the ‘conservative’ party. This polarization leaks into every aspect of government function as well, with genuine policy efforts from either party often being drowned in riders and caveats from the party machine. The Supreme Court, especially in recent years, is no stranger to this polarization, with election cycles often warping the process of appointing Justices. The case of Merrick Garland, for instance, involved Republicans blocking a nominee favored by Barack Obama, a Democrat, in hopes of a Republican winning that year’s election and choosing a different nominee. Another instance of this sort of practice occurred in 1937 when President Roosevelt attempted to pack (expand) the court to 15 Justices and appoint the extraneous 6, thus creating a democratic majority. He did this explicitly to push his New Deal policy- effectively an attempt to circumvent the court entirely, by filling it with justices he knew would back his plans. This kind of political scheming is due in part to the long-term effects of a Supreme Court justice being appointed, as they serve for life unless retired, dead, or impeached. Typically, conservative justices reject liberal reforms, so a liberal president with a conservative court that he can’t change will be unable to get much-done policy-wise. Thus, it is beneficial for the party to plan around appointing justices, to make sure their favored nominees get put in power. This potentially reaches a morbid level, such as with Ruth Bater Ginsburg’s death making more headlines due to the political significance of it than for anything else- and within a 2-party system where the prime representative of either party chooses the justices for the court, these sorts of political games surrounding the Supreme Court are bound to continue without structural change.
A potential avenue for reforming the court would be establishing some form of judicial independence, to make the appointment and approval of justices nonpartisan in some way. That way, at least in principle, the court would be obligated to make their decisions based on what’s best for the people and correct within the legal framework, rather than appealing to their party loyalties. However, the problem of the Supreme Court’s undermining of democracy and exacerbation of polarization is not one solved by a simple reform or two. To promote actual democracy within the US, a fundamental restructuring of the party and political system will likely be necessary
-Aziz Huq & Tom Ginsburg, “How to Lose a Constitutional Democracy,” 65 UCLA Law Review 78 (2018).
-Hudson, Michael. “Should There Really Be a Supreme Court?: Michael Hudson.” Michael Hudson | On Finance, Real Estate and the Powers of Neoliberalism, 9 July 2023, michaelhudson.com/2023/07/should-there-really-be-a-supreme-court/.
-“How FDR Lost His Brief War on the Supreme Court.” National Constitution Center – Constitutioncenter.Org, constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2. Accessed 17 Oct. 2023.
-Vogue, Ariane de. “Amy Coney Barrett: Supreme Court Ethics Code Would Be a Good Idea | CNN Politics.” CNN, Cable News Network, 17 Oct. 2023, www.cnn.com/2023/10/16/politics/amy-coney-barrett-supreme-court-ethics-code/index.html.