The Supreme Court continues to be one of the central issues driving every modern presidential election. The death or retirement of a single Supreme Court Justice can send shockwaves through our entire society, stirring up stunning levels of vitriol, hyperbolic rhetoric, and aggression. But how did we get here? Why is the Supreme Court so important?
The Authority of the Supreme Court
The United States Supreme Court “is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”
Article III of the United States Constitution establishes the federal judiciary.
“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.”
Congress has the power to decide how to organize the Supreme Court, with the Judiciary Act of 1789 establishing 6 justices. This number has fluctuated over time, from a low of 5 to a high of 10. Since the Circuit Judges Act of 1869, there have been 9 justices on the court, with a Chief Justice and 8 Associate Justices.
Article III, Section II outlines the court’s jurisdiction, which allows certain cases to be tried directly before the court, and for appeals to be considered regarding almost any other case that involves a matter of constitutional and/or federal law.
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”
Article II Section II provides the president — with the support of the Senate — with the ability to appoint judges to the Supreme Court.
“He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
Why is the Supreme Court so powerful?
The best-known, and arguably the most impactful, power of the Supreme Court is “judicial review.” The case of Marbury v. Madison in 1803 first established the Court’s ability to strike down any Legislative or Executive act as “unconstitutional” if it is deemed to violate the text of the Constitution.
Therein lies the rub. While the United States Constitution is a concrete document, the action of interpreting it is often abstract. The subjectivity of interpretation possessed by each Supreme Court Justice means that the same text can be “interpreted” in a variety of ways. There are originalist justices, who believe that there is some form of original intent or meaning which remains unchanged in the words of the Constitution. Then there are those who interpret the Constitution as a vague “living document” which morphs based on the society of its time. Then there are those who see the Constitution as a barrier to underlying political objectives which must therefore be traversed rather than respected.
The style of interpretation possessed by its members is what makes the Supreme Court such a politically contentious issue. When we analyze the potential implications of judicial review through the lens of genuine intellectual disagreement or partisan cynicism, history is replete with examples of devastatingly consequential judicial decisions which had entirely legislative outcomes.
Legislative power through the judicial branch
In Dred Scott v. Sandford (1857), the Supreme Court determined that the Constitution was supposedly not meant to include American citizenship for black people. In Roe v. Wade (1973), the Supreme Court concluded that the Constitution somehow protects a woman’s freedom to have an abortion under the banner of “protecting privacy.” In Obergefell v. Hodges (2015), the Supreme Court declared that same-sex marriage was guaranteed by the Due Process Clause and Equal Protection Clause of the 14th Amendment. These landmark decisions, with vast legislative and societal results, were determined by nine unelected members of the judicial branch.
Apart from whether or not these individual decisions — and many others — are right or wrong, the broader issue is that the Supreme Court can be deliberately misused as a tool of “progress” to bypass the inconvenient barrier of legislative process. For this reason, those who view the Constitution as either a “living document” which can be molded to their perspective or as an obstacle see the Supreme Court as a prize which must be won. In return, those who wish to defend the Constitution must also fight to protect it from such judicial abuse.
Over the decades, political activists have discovered that it is immeasurably more efficient to achieve their political desires with the support of a handful of unelected and politically-motivated lawyers than the support of the House of Representatives, the Senate, and the White House. Ultimately, it is up to us to demand that the legislative branch do their job, and it is up to us to protect the Constitution.