The U.S. Supreme Court is a Menace to Democracy
The highest court in the land is too powerful and too politicized, but it doesn’t have to be this way.
Amidst the national grief over the passing of Justice Ruth Bader Ginsburg on September 18th, there has been another overwhelming emotion in the heart of many Americans: anger. This collective outrage stems from realizing that the passing of one justice in the highest court of the land could potentially spell the end for a number of civil rights gains made over the past decades, including but not limited to reproductive healthcare access.
What kind of democracy do we live in when the life of someone none of us voted for — or could vote for — can have major legislative ramifications for decades to come? It’s a fair question to ask, no matter what your feelings towards Ginsburg herself might be.
Power and Politicization
Of course, this is far from the first time the Supreme Court has faced criticism. Many scholars and pundits have lambasted the court for being highly politicized when, according to the framers of the Constitution, it was intended to be a neutral body that could check the legislative and executive branches of government, in addition to having final appellate jurisdiction over lower court rulings and the ultimate say in interpreting the Constitution.
Writing in the Federalist 78, Alexander Hamilton claimed that the judicial branch was the weakest of the three branches of government. He believed this was the case because the judiciary has no control over money (the responsibility of the legislature) nor the military (the responsibility of the executive branch). Unfortunately, he lacked the foresight to predict how powerful and politicized the judiciary would become.
To a certain extent, the politicization of the Supreme Court is unavoidable, because there is no such thing as a truly objective human being with no opinions that inform and influence how they understand right from wrong. No matter how level-headed or neutral a person is or tries to be, their biases will show themselves in their judgments from time to time. A group of nine people whose great responsibility it is to make judgments on behalf of the supreme law of the land is no exception to these very human flaws.
However, such flaws are exacerbated by the amount of power these justices have as a result of lifetime appointments, as well as the process by which each is appointed.
The Abolition Option
Some critics have called for the abolition of judicial review, citing the use of this power to override the people’s will, as represented by the legislators elected to make decisions on their behalf. However, this wouldn’t simply weaken the court — it would render it toothless and demote it to more of an advisory committee than anything else.
If judicial review were abolished and the executive and legislative branches could brush past the judgments of the Supreme Court (nothing more than stern recommendations, in this case), imagine what a more authoritarian president could do. Virtually nothing would stand in the way of them jailing journalists, starting wars without Congressional declaration, or doing any number of dangerous things — all because it would be more “democratic” to allow someone elected by voters to interpret the Constitution.
There are much better alternatives to reforming the Supreme Court so it better aligns with its original purpose, and we can see such systems in place just across the pond.
The Grass is (Actually) Greener
In the United Kingdom, the nomination process is much different than it is in America, where a candidate is selected by the President and then questioned and approved or denied by the Senate. Instead, an independent committee selects nominees and questions them on everything but their political beliefs before appointing them to the court. Leaving political beliefs out of the selection process has created one of the most independent higher courts in the world.
Germany provides yet another excellent example for us, as nominees are also selected by an independent committee comprised of twelve members who represent all the parties in the German Parliament. Afterward, nominees must be approved by a two-thirds majority in Parliament. In contrast, U.S. Supreme Court nominees only need a simple majority in the Senate to be appointed.
Additionally, German justices are only allowed to serve on the court for twelve years, or until they turn 68. In fact, most European higher courts have term limits or age limits imposed on their justices—a far cry from the decades-long tenures of U.S. justices with their lifetime appointments.
A New Hope
Following Ginsburg’s passing, legislation has been already proposed to enforce term limits on justices. Representative Ro Khanna (D-Calif.) recently announced the Supreme Court Term Limits and Regular Appointments Act, which would limit Supreme Justices to 18-year terms while limiting presidents to just two appointees for every four-year term they serve. This change would exclude those justices who are already serving on the court, to avoid a political crisis.
In the past, term limits for justices have only been proposed by constitutional amendment. By going the legislative route, the bill could be approved by a simple majority in both the House of Representatives and the Senate. According to Gabe Roth, the executive director of Fix the Court, the necessity of term limits in the Supreme Court is something most liberals and conservatives already agree on, so the bill might have a chance at gaining bipartisan support in Congress.
Despite what the framers may have intended, the U.S. Supreme Court has proven itself to be neither independent nor as weak as Hamilton once claimed over 200 years ago. Some argue that the issue lies in politicization, while others counter that the real problem is power. The truth is that both problems are present and intensifying each other, and for that reason, we must fundamentally change the lifetime appointments and nomination process for Supreme Court justices. Only then can the highest court in the land fulfill its role as a safeguard to our democracy instead of a weapon wielded against it.
