It’s that time of year again–the time when the air turns crisp, leaves fall from the trees, and nine seemingly benign individuals congregate to produce decisions which impact our country in untold ways. That’s right: the Supreme Court opened its 2014 fall session this past week, and it opened with a bang.
As you probably know, the Supreme Court, for better or for worse, is an institution with unimaginably awesome power. In the past sixty years, the Supreme Court has made school segregation illegal; made abortion legal; backed Florida’s votes in the 2004 Bush v. Gore election, thereby effectively making Bush president for a second term despite some extremely questionable election results; made it illegal for police officers to arrest an individual without reading him his Miranda rights; and made it legal for rich people and corporations to give unlimited sums of money to politicians.
Just in the past two years, the Court invalidated a key portion of the Voting Rights Act (one of our country’s most important civil rights laws); determined that gays and lesbians have a constitutional right to the marriage benefits received by heterosexual couples; eroded affirmative action policies at public universities; and allowed corporations to deny its employees health care coverage covering birth control in the name of religious freedom. Undeniably, that’s a ton of power. In fact, in a lot of ways, the Court’s power eclipses the power of the Presidency. Whereas the President’s power is limited by Congress’ veto power, the Court often has the final say over whether legislation is permissible or not, and to what extent.
If the American people don’t like one of the Court’s decisions, often the only process for overturning it is to amend the Constitution. (The Court’s job, after all, is to define the parameters of the Constitution. Altering that document is thus the only way to directly negate their pronouncements, at least where the Constitution is concerned. Sometimes Court decisions can be negated by legislation, if the decision involved interpreting a piece of legislation irrespective of constitutional rights. But that gets us a bit too far afield.) Yet doing so requires a Congressional supermajority which is nearly impossible in today’s political climate. The last constitutional amendment—dealing with Congressional salaries—was passed in 1992. There have been only 27 constitutional amendments, and 10 of those were passed by the Founding Fathers, encompassing the Bill of Rights. If the Supreme Court produced an opinion this term making all firearms restrictions illegal (not out of the realm of possibility, given the Court’s current majority), can you really imagine Congress getting a supermajority to change that? I can’t either. In effect, the Court’s decisions, as they relate to defining the Constitution, are unreviewable.
Given the Court’s power, it’s surprising that (1) individual Americans don’t have more of a say in the election of the individuals who compose the Court, and (2) these un-elected individuals, who aren’t accountable to the public, can serve terms of 30 or more years.*
Not everyone understands that when America elects a President, they’re granting that President the power to appoint judges and justices. So far, Obama has appointed two justices, Sonia Sotomayor and Elena Kagan. It’s too early to say how they’ll make their mark on the Court, or what kind of justice they’ll be. Will they be, like Justice Kennedy, a pivotal swing vote who sometimes champions independence and liberty? Or like Justice Scalia, he of the witty yet biting pen, and ever insufferable moralizing? Nobody knows how they’ll turn out. Either way, we simply have to hope that Obama made the right choice in appointing them; we have no say in the matter.
Perhaps even more alarmingly, the justices have lifetime tenure. Consider Justice Elena Kagan. She is 54 years old and was appointed when she was 50. She’s the youngest justice on the bench. It is eminently possible–even probable, what with advances in medical technology, etc. etc.–that she’ll serve on the bench for at least 40 years. Now, maybe she’ll turn into one of the most brilliant jurists in American history, I don’t know. But maybe she’ll stay mediocre. Do we want 40 years of mediocrity in our highest court?
Justice Ruth Bader Ginsburg is 81. She has no plans to retire anytime soon, despite plenty of liberals exhorting her to step down amidst fears that our next President will be a Republican, and despite the fact that she falls asleep during oral arguments from time to time. Justice Antonin Scalia is 78. He’s served on the bench for 28 years, since 1986. He could easily serve 12 more. (Just look at him: fit as a fiddle!) It’s not just the current make-up of the court: Retired Justice John Paul Stevens served until he was 90; former Justice Oliver Wendell Homes served until he was 91.
Suppose Justice Scalia went a tad dotty in his 79th year and told his clerks that he didn’t care anymore, and they were simply to agree with whatever Justice Clarence Thomas decided. What if, heaven forbid, Justice Kennedy got dementia. Were this to happen, there would be nothing we–or any elected politician–could do to stop it. (In fact, that same situation already happened back when Justice Thurgood Marshall told his clerks to mimic Justice William Brennan’s decisions.) Is that what we want from our justices?
The Founding Fathers desired lifetime tenure and executive appointments because they wanted the judiciary to be independent from the Executive and Legislative branches in order to preserve the sanctity and neutrality of the court. The Fathers didn’t want the justices to decide one way or another due to fear of a decision’s political implications or political retaliation. This is certainly an admirable notion. Yet in designing a system to assuage those fears, did the Framers go too far in the opposite direction? What do you think?
* For that matter, can you name all nine justices? Do you know who the Chief Justice is? Don’t feel badly if you can’t; I’ve spent the past four years reading Supreme Court opinions and I still can’t remember if the ninth justice is Stevens (retired for several years now; I just looked it up) or Breyer (still an active justice).