A conservative majority on the highest court in the United States is issuing sweeping decisions affecting the rights and liberties of everyone in the country. These rulings have focused attention on the Supreme Court, an institution celebrated as the defender of American democratic norms. A closer look at the purpose and practice of the U.S. judicial system paints a more complicated picture.
What is the Supreme Court?
The Supreme Court is the highest court in the federal judicial system. It can overturn the decisions of lower courts, and its decisions may not be overturned by any other court. The Supreme Court also exercises “judicial review”: deciding whether laws are permitted by the United States Constitution (CNN).
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Why is the court so important?
Since the legislative branch—the House of Representatives and the Senate—is often unable to pass major legislation thanks to partisan gridlock, the unelected members of the Supreme Court set much U.S. policy (Buffalo News). The legalization of same-sex marriage, the repeal of anti-sodomy laws, and the end of legal racial segregation all resulted from Supreme Court decisions, not Congressional legislation (History).
Was the court created to decide on the constitutionality of laws?
No, the Supreme Court granted itself this right in 1803 (The Conversation). In its decision in Marbury v. Madison, the Court asserted its power to strike down laws passed by Congress that it finds unconstitutional (History).
Who’s currently on the Supreme Court?
The Supreme Court has nine justices: John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Presidents appoint new justices when a current justice dies or retires (CNN). Appointees are confirmed by a majority vote in the Senate (CNN).
Are the justices required to be judges?
No. Elena Kagan was never a judge. Neither was former Chief Justice Earl Warren (History). All but one of the current justices, however, graduated either from Harvard or Yale (US News). Since there are 196 law schools in the country, almost all justices hail from the same 1% of schools (U.S. News).
Why do justices serve for life?
While Supreme Court justices can theoretically be impeached and removed from the Court, this has never happened. Justices serve lifetime appointments, so they are not influenced by political pressure, including pressure from “the major voice of the community,” in the words of Alexander Hamilton. In other words, Supreme Court judges serve for life so that they’re insulated from democratic pressure (University of Chicago). The Supreme Court is designed as an explicitly anti-democratic institution.
But didn’t the Founding Fathers write the Constitution to preserve democracy?
The Founding Fathers—pro-genocide activists (AILR) and the wealthiest men in the colonial slave empire (PolitiFact)—despised democracy. “These were the kinds [of people] that thought democracy was a dirty word,” says Dr. Andrew Wehrman. “Even John Adams said stuff like that. He didn’t want poor people to vote, he didn’t want women to vote.” And that’s to say nothing of the millions of enslaved African people whose forced labor made the Founders rich (VOA, Insider).
The Founding Fathers were quite explicit that their system of government was designed to disenfranchise ordinary people, including non-wealthy white men, who they disparagingly referred to as “the mob” (PBS). Institutions like the Supreme Court (and Presidency, and Congress) were crafted to ensure democracy wouldn’t break out.
How can we defend our rights in an undemocratic system?
The U.S. judicial, legal, and political system are designed to benefit the rich and powerful (The Guardian, N.Y. Magazine, Time, AlterNet). This is a feature, not a bug: not the fault of a few bad apples or the oversight of well-intentioned leaders, but the system working exactly the way it’s intended to. In response, organizations around the country are fighting to ameliorate its harm, save lives and ensure marginalized people can return to and survive in their communities. It’s up to us to support their work.
• The Supreme Court sets much U.S. policy because of legislative gridlock.
• Justices serve for life to guard them against pressure by the democratic majority.
• The Founding Fathers feared democracy and designed the U.S. government to prevent its emergence.