By Richard L. Pacelle, Jr.
The first Monday in October is the traditional day that the U.S. Supreme Court convenes for its new term. Analysts and soothsayers carefully read the signals and forecast the direction the court will take. This year the scrutiny seems a little more intense, as the court takes up several highly charged cases.
Alexander Hamilton famously thought the judiciary would be the weakest branch of government. He recognized that the Supreme Court lacked “the sword and the purse” and could not enforce or implement its own decisions. Rather, it would need to rely on the good offices of the other branches.
As a student of the Supreme Court, I have examined how the power and authority of the Court have waxed and waned over the centuries. The modern Supreme Court, dating back to Brown v. Board of Education in 1954, is one of the most powerful tribunals in the world and across history.
That immense power has arguably made the court a leading player in enacting policy in the U.S. It may also cause the loss of the court’s legitimacy, which can be defined as popular acceptance of a government, political regime or system of governance.
May it please the Court
When the founding fathers designed U.S. government, Congress was supposed to be the most powerful institution. But gridlock has sapped its vitality. Presidents, who have enormous power in foreign affairs, are often constrained in domestic politics. The limits on the Supreme Court – no army, no administrative enforcers – may be real, but the judiciary, with the Supreme Court at its apex, has become in the view of some, the most powerful branch of government.
One of the lures of the Supreme Court is that a victory can be etched in stone as a precedent that can be used for decades.
The U.S. government, states, corporations, unions and interest groups are among the so-called “repeat players” who strategically use the courts – including the Supreme Court – to supplement their lobbying efforts and further their policy objectives.
An interest group like the American Civil Liberties Union might go to the Supreme Court to protect a bookseller’s free expression. The National Association for the Advancement of Colored People, now called simply the NAACP, might challenge state or national legislation that is perceived to suppress voting rights. The U.S. government might prosecute a defendant charged with violating an indecency act. Civil rights advocates famously used the judicial branch because Congress, the president or both were not responsive.
Groups, of course, might use the courts because the judiciary is the most appropriate venue to defend the rights of unpopular groups or ensure protections for defendants. The courts might better protect against tyranny of the majority. Groups might bring a case to protect the free exercise of religion by Muslims or challenge aid to religious schools as favoring one religion over another.
The ultimate resource: legitimacy
The Supreme Court’s public approval annually hovers around 50% to 60%, which is much better than Congress and typically better than the president. But that approval is at its lowest ebb in decades.
The controversy over recent nominations, threats to pack the court, and whispers that certain precedents are about to be overturned have held the court up to more attention and threaten its legitimacy. And the court’s ultimate authority rests on its legitimacy. If the court is seen as too political, it will bleed this precious resource.
The Supreme Court has almost complete discretion over the cases that it hears. It annually gets 7,000 to 8,000 petitions for its attention and it routinely takes about 85 cases for full review.
The court takes cases to resolve disputes between lower courts and because the parties are raising important issues. But having a really important issue does not ensure the court will review it.
Sometimes the court simply wants to let an issue develop a little more in the lower courts before addressing it. The court may not want to get ahead of public opinion. For years, the court simply refused to take cases involving gay rights. Sometimes, they try to avoid an issue in hopes Congress or the states might be compelled to intervene.
The court’s ultimate decision is binding precedent on lower courts and the justices themselves.
The justices have been criticized for using the court to make policy decisions. This is controversial in part because the justices are not elected and enjoy lifetime tenure. They cannot be voted out of office.
Critics prefer that the court adopt judicial restraint and defer to the elected branches of government who could be removed by the voters if they oppose their policies. Both sides charge the other with being activists, which is the worst insult you could levy at a judge.
But the court’s willingness to push its way into the political maelstrom has quietly been welcomed by the other branches that can avoid the difficult questions and then curry favor with the voters by criticizing the court.
A court of law or of men and women?
As this Supreme Court term begins, opponents and proponents of reproductive rights are predicting the court will overrule one of its precedents, Roe v. Wade. Of course, this would not be the first time that such a prediction has been made.
Anyone analyzing the court needs to reconcile two competing realities. First, justices are relatively consistent in their decision-making: Conservatives issue conservative decisions and liberals issue liberal ones. Second, the court itself seldom overrules one of its precedents. In addition, despite the divisions on the court, usually about one-third of the cases are decided unanimously.
Two decades ago, seven of the sitting justices at the time expressed the view that Roe was wrongly decided, but a majority of that court never voted to relegate it to the dustbin of history.
On the other hand, when the court does overturn precedents – for instance, Brown reversed Plessy v. Ferguson, ending legal segregation – it is after the passage of time. Fifty years is typical and Roe is approaching that hallmark.
Occasionally, the court makes a decision that is out of step with public opinion and may pay a hefty institutional price. When the Taney Court issued the Dred Scott v. Sanford ruling in 1857, claiming freed enslaved people could not become citizens and overruling the Missouri Compromise that balanced the number of free and slave states, the decision weakened the judiciary for decades. When the conservative-leaning court gutted portions of the New Deal, President Franklin Roosevelt attacked the court and the court backed down.
Overturning Roe would invite criticism and closer scrutiny. It might expose the court as an institution that makes the law rather than one that interprets it.
Richard L. Pacelle, Jr. is Professor of Political Science at the University of Tennessee.
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flatsflyer says
When someone answers a question during the Confirmation Process and states that something is “Settled Law” and when Confirmed acts differently, the Judge should be removed from office because he committed Purgery. Lying to going office should not be tolerated, period. At least 3 current SCJ’s have lied their way into a life time position.
David Kehoe says
I am not sure what the point of this article is supposed to be. There is a HUGE reason the justices are APPOINTED rather than “run” for this critical position in our government. Their decisions should be based on principle and law, not public opinion polls. Thats why this democratic desire to “pack” the court is insane and will bring the America we all know and love to its end.
JPK says
@ David Kehoe: The Republicans have packed the Court – Gorsuch has Garland’s seat, woman abuser Kavanaugh has a seat, and Barrett was a rush job be Moscow Mitch.
And the end of America we all love and know may have already occurred. As Justice Sonia Sotomayor recently said in her dissent to letting the Texas abortion bill remain in place – “The Court’s order is stunning. Presented with an application to join a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the Justices have opted to bury their heads in the sand.”
“The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” she concluded.
I wonder if the conservative justices would be so cavalier about the Constitution and precedent if a state banned Viagra.
David Kehoe says
You are amazing calling Kavanugh a women abuser. You are entitled to your opinion of not liking a conservative on the court but you are NOT entitled to make false accusations. That silly HIGH SCHOOL claim , and since the supposed crime of the century took place in HIGH SCHOOL they were juveniles, not sure why you choose the word women abuser. The reason that issue was rejected, there was ZERO evidence it actually happened. So I assume that anyone that is nominated for the Supreme Court should be rejected because anyone makes a negative claim.
ME says
SILLY HIGH SCHOOL CLAIM??!! Yes, a professional psychologist just decided one day to accuse someone of rape!? Why would anyone do that?
David Kehoe says
I am not sure but as you describe, a professional psychologist, why did she wait 20 years plus to go public???? Maybe she needed attention or was encouraged to make up a story????
Pogo says
@JPK
DK knows, “The Republicans have packed the Court – Gorsuch has Garland’s seat, woman abuser Kavanaugh has a seat, and Barrett was a rush job be Moscow Mitch…” He is one:
Only more so (scroll to bottom):
https://hutsoncompanies.com/about-us/
Did you vote for this?:
Florida State Senator Travis Hutson
https://electhutson.com/
Hutson was born into one position and has spent his entire adult life as a professional Republican:
Professional Experience
Vice President, Hutson Companies, present
Former Finance Team Member, Agriculture Commissioner Adam Putnam
Former Finance Team Member, Attorney General Pam Bondi
Former Finance Team Member, Chief Financial Officer Jeff Atwater
Former Finance Team Member, Governor Mitt Romney
Former Finance Team Member, Governor Rick Scott
Former Finance Team Member, Representative Daniel Davis
Former Finance Team Member, Saint Johns County Sherriff David Shoar
Former Finance Team Member, State Attorney Angela Corey
Former Finance Team Member, State Attorney R.J. Larizza
Former Realtor, Watson Reality
Assistant, Ambassador John Rood, Vestcor Companies, 2010
https://justfacts.votesmart.org/candidate/biography/138133/travis-hutson
Hutson’s voting record; has he ever helped you? Or anyone you know?
Over 20 years of elected Republicans running floriduh’s world. They rule it — the rest of you just live (and die) in it.
So what? And, what does this have to do with the SCOTUS?
This: Ask any elected Republican about popular Republican policies, e.g., term limits, mandatory retirement — AND applying them to THEIR SCOTUS…
Deborah Coffey says
But, WHO already packed the court with two accused sexual abusers and one handmaiden? Republicans did. It’s time to pack the court with ethical, competent, non-lying, respectable justices. Thirteen sounds like a good number.
David Kehoe says
Ok, cool, you dems “pack” the court with additional liberal judges, then when the Republicans take back control, they should add more Supreme Court judges to offset the recently appointed liberal judges. So what are you thinking??? Perhaps we should have 50 Supreme Court judges and see how things go!!!
What Else Is New says
Flatsflyer Says is exactly right. Those last three appointees lied when asked if they would vote to overturn Roe v Wade. It is an outrage to think Evil Mitch arranged this disaster which is unfolding before our eyes. Sotomayor’s latest warning of what is to expect, “…lots of disappointments,” and “… public outcry might help.”
Sherry says
Thanks to Pogo, JPK, Flats Flyer, Deborah C and all the rest who have correctly pointed out the obvious: Now that Mitch McConnell and the Republicans have “bullied” and “obstructed” their way into “packing the Supreme Court” with their political hatchet people, the Republicans want to stop any consideration of increasing the size of the court in order to make it more politically “balanced”. They seem to only believe in term limits and retirement requirements when it comes to Democrats.
And yes, even “high school” sexual abuse should NOT be acceptable! We currently have TWO Right Winged sexual abusers on our Supreme court, along with an X Republican president. What does that say about the Republican party who “looks away” and seems to generally dismiss such abuses of women?
David Kehoe says
Sherry, its so easy to throw out accusations against people as you sit on your keyboard and this is an issue society needs to recognize. There is NO evidence that Judge Kavanaugh did anything wrong in HIGH SCHOOL other than drink beer, which he admitted to.. You can continue with your thinking but dont make false accusations. The women that made the false accusation could not find ANYONE to support what she said happened, do you understand that??? Or is the claim by this women the final word??? This is crazy. Who is the other sex abuser and don”t tell me Clarence Thomas, that was also a fake claim and if you do, you are just a racist!!!!
Sherry says
@ David. . . “you” are a waste of my valuable time!