Supreme Court
Supreme Court

The Supreme Court Is Undemocratic, But It Doesn’t Have to Be

Democracy shouldn’t depend on judges taking their vitamins.
October 28, 2018
7 mins read

Americans asking Justice Ruth Bader Ginsburg to take multivitamins for the sake of maintaining her power in the Supreme Court are an absurd sight, to say the least. It is almost shocking when digesting the fact that Americans have even offered everything from prayers to organ donations. However, this interesting interaction shows just how little power Americans can exercise over the Supreme Court.

The Supreme Court, although meant to be a bulwark of American democracy, is surprisingly undemocratic. The concentration of judicial power in the hands of nine elite individuals can be pretty unnerving, especially considering they hold that power for the rest of their lives if they chose to do so. The absurdity of the court’s undemocratic nature is finally beginning to prompt Americans to seek legislation to reshape the court, rendering it a better reflection of democratic principles.

As the heart of one of the three major branches of government, the Supreme Court has the power to challenge, strengthen or sever social bonds within the United States. This is clear even by skimming though American history; the Supreme Court wields an enormous amount of power as an institution. The desegregation of schools and same-sex marriage were some historic events that were made possible thanks to key Supreme Court rulings — but so were the weakening of labor unions and women’s healthcare rights. Needless to say, the power of the courts can shape the course of the people’s history for better or for worse, hence why Americans are calling for change.

A Nearly Rogue Institution

The number of justices residing on the Supreme Court doesn’t necessarily need to be limited to only nine judges. At its creation, the U.S. Constitution only stated that Congress holds the power to determine the structure of the Supreme Court. With the passage of the Judiciary Act of 1789, Congress required that at least six individuals work as justices in the U.S. Supreme Court.

It’s important to note that the Constitution never set a limit to how many seats — or voices— could form the foundation of the Supreme Court. Still, since 1869, the political norm has been for only nine justices to fill the Court and continues to be so to this day. Scholars and activists emphasize this key point in their critiques of the current structure of the Supreme Court.

Only nine appointed individuals wield the power to determine the validity of laws that affect more than 300 million people. Originally, the Supreme Court was meant to remain non-partisan — or free from bias from political party affiliations. Now, however, the Court is more polarized than ever, and the nominees are only becoming more extreme in their ideological alignments. Without any accountability, justices are effectively free to bring their personal politics or biases into their court rulings.

One such instance of the extreme polarization occurred in 2016. The Republican-dominated Senate obstructed Democratic president Obama’s nomination of Merrick Garland for the Supreme Court in order to allow Obama’s successor, Republican president Trump, to fill the seat with his own choice. The extent of the intense party rivalry that’s seeped into the c8ourt can be seen in Senate Leader Mitch McConnell’s statement in August 2016: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

Moreover, the life-long tenure that these appointed judges enjoy prevents them from facing any accountability or checks on their political behavior. As a result, American presidents have begun focusing on attaining the youngest and most ideologically fervent appointee for the job, rather than the most knowledgeable or moderate professional.

To make matters worse, the press is prohibited from broadcasting Supreme Court activity or hearings, and protestors can face arrests for demonstrating in front of the Supreme Court building. Effectively, the isolation of the court from public pressure does allow to exercise independence but can often remain deaf to the voices of the American populace whom their decisions will affect daily. Excluding other political actors from its processes, the court can resemble a rogue entity operating freely within the U.S. government.

The Battle for Change

Following the controversial appointment of Judge Brett Kavanaugh, Dr. Aaron Belkin, professor of political science at San Francisco State University, and Sean McElwee, founder of Data for Progress, consolidated their new project. On its Twitter account, the two announced the commencement of Project 1.20.21 as their response to the instability that has been intensifying within judicial politics.

Aside from regularly circulating memes on its Twitter page, the political group’s objective is to expand the judicial system by adding four more seats to the Supreme Court bench, increasing its current number of nine judges to 13. However, their mission requires that the Democratic Party regain control of Congress and the White House. In other words, a Democrat needs to succeed President Trump in 2020 for these reforms to become politically viable. In its public mission statement, Project 1.20.21 asserted that:

“The motive behind the GOP’s judicial dirty tricks is that Republicans want courts to serve the interests of corporations and the wealthiest elites, and as the judiciary has issued increasingly radical decisions over the past generation, it has shattered the lives of people of color, women, workers, immigrants, victims of gun violence and prisoners.”

Other political organizations have also been advocating for heavy reforms of the Supreme Court for years now. One such group is Fix The Court. The organization seeks to not only increase the number of seats, but to make the Court a more open and transparent institution. Fix The Court recognizes that the flaws in the judicial system are exploitable under any presidency, regardless of political party. Thus, it aims to encourage legislation that would allow more press and activists to have increased access to Supreme Court hearings.

Should these groups be successful, it wouldn’t be the first time in modern U.S. history that Americans have attempted to change the structure of the courts. In the 1930s, President Franklin D. Roosevelt attempted to “pack” the Court with up to 15 justices total. He hoped to effectively create a Supreme Court that didn’t challenge his policies as president. Nonetheless, Roosevelt faced opposition from legislators and members of the court itself, and his plan to pack the courts failed.

However, if civic organizations like 1.20.21 and Fix The Court were to spearhead the call for reforms, it would generate enough pressure to have Americans and Congress see the Court in a new light. Moreover, it could be the first time that the mass mobilization from a political movement leads to a radical transformation of the historically untouchable Supreme Court.

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