It is well-known that the founders of the United States’ government envisioned a tripartite federal system of government including an executive branch (the President), a legislative one (Congress and the Senate), and a judicial branch (the Supreme Court). Part of the idea was that each branch could ‘check’ the others, ensuring that no one of them became too powerful. In practice the system has flaws. The President now has the power unilaterally to declare war on another country. As we saw in the recent Obama Presidency, the legislative branch can more-or-less refuse to cooperate with the executive branch. And the Supreme Court arguably has, in ways that will be detailed below, way too much power. I believe that the Supreme Court has the most power in government, in certain key respects.
There are two broad reasons for thinking that the Supreme Court has the most power in government. First, it is not in any direct way answerable to the will of the people. Supreme Court justices are appointed, rather than being elected. This means that they do not have to answer, at least directly, to their constituencies as conventional politicians do. Furthermore, Supreme Court justices, again in contrast to conventional politicians, serve for life. In theory that means that they serve for as long as they care to, that is until they decide to retire. But it rarely happens that a justice retires while still mentally and physically competent. In actuality, the Constitution makes no provision for lifetime appointments of Supreme Court justices. What it says is that they will be able to continue to serve so long as they exhibit ‘good behavior’. In practice, however, this is a meaningless provision that has never been used to unseat a Supreme Court justice. This point is supported by Stuart Taylor’s article “Life Tenure is Too Long for Supreme Court Justices,” The Atlantic June 2005, who points out that justices who have retired since 1970 have averaged a full quarter-decade on the bench.
Taylor points to several specific problems with this system. Three will be mentioned here. First, few if any professions—and no professions that have anything like the sort of importance as Supreme Court justice-hood—allow people to continue working into their 80s and 90s. People simply are not as sharp in their declining years. Second, if terms were shorter justices could have more accountability. As it is, if someone makes a large mistake with an appointment, the country would simply be stuck with it for 20 or 30 years. Third, the fact that appointments are so important, and so rare, brings out the worst in politicians. Witness the fierce debate last winter concerning whether Obama—as sitting President—or Trump, as President elect—should be able to fill retiring judge Scalia’s spot on the bench.
Therefore, the system for choosing Supreme Court justices is flawed in two respects. One is that they are appointed, and so do not have to represent the will of the people, even in a democracy. The other is that their continued employment and status is in no way dependent upon their performance. This idea is supported by Robert Bauer’s article “A Court Too Supreme for Our Good,” The Washington Post, 7 August, 2005, who notes that the Supreme Court justices, in addition to enjoying lifetime appointments, also severely limit access to the proceedings in which they are involved. No good reason has ever been provided for the view that the public should not be privy to the justices’ deliberations and arguments.
The second reason that the Supreme Court wields too much power in certain respects is that its decisions can be more-or-less permanent. Sometimes this is a good thing, as it arguably was with the Court’s decision in Roe v Wade, which guaranteed at least minimal reproductive rights for women. At other times, however, the influence of the court can be catastrophic. An example is its continued refusal to consider racial bias in any part of the criminal justice system. This point is supported by Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press: New York, 2012), who shows that the Supreme Court has effectively made it impossible to bring suit against any actor in the criminal justice system—law enforcement officer, district attorney, judges—for racial bias. This means that people have literally no legal recourse if a member of the criminal justice system treats someone unfairly on the basis of the latter’s race (pp. 109-114).
An additional reason to think that the system of government vis-à-vis the Supreme Court is flawed is that in certain situations, such as the one the United States faces currently, a single appointee can ensure that the Court will take a primarily conservative (or liberal) stance. This is because there is an odd number of justices, and those serving currently are split into three conservatives and three that are not quite as conservative. Therefore, in such a situation a sitting President can effectively determine the tenor of Supreme Court rulings for decades to come. This point is supported by Larry Kramer in his article “The Supreme Court’s Power Has Become Excessive,” The New York Times, 6 July 2015, who shows argues that our system badly needs a system of judicial review, rather than the current state of judicial supremacy.
The Supreme Court has too much power. It is not accountable to the people, in being appointed rather than elected. Its members have no incentive to do their work well, having lifetime appointments. And the decisions that they make have the power to affect entire generations of Americans in negative ways.