When the Founding Fathers set up our form of government, relatively little thought was given to the judicial branch. From early on, the Framers considered the courts to possess the least amount of authority in a democratic republican society. In The Federalist papers, Alexander Hamilton noted that the legislative power was by far the most predominant, whereas the judicial branch was by far the weakest of the three branches of government (Paulsen, 1994, p. 229). Today, however, the judicial branch has grown increasingly influential in shaping policy on a national level. Given the tremendous policy-making authority the Supreme Court holds, it is somewhat troubling that the Supreme Court is the only branch of government where the officials are not directly accountable to the people.
The Supreme Court has decided many controversial and important issues that some argue should be left to the political process. Unlike the Legislative or the Executive branch, Supreme Court Justices are not elected by popular vote. The Constitution vests the power to nominate Supreme Court Justices and other federal court judges in the President (U.S. Const. Art II, s. 2, c. 2). The President nominates candidates to fill vacant positions, and the Senate confirms the nominations. But at no time does the general voting public have a direct say on judicial nominees. Whereas the President is elected by popular vote and the electoral college and Congressman are directly elected by state constituents, federal judges are appointed, bypassing the general election process altogether.
Sitting Atop Mount Olympus
In a democratic government, it is somewhat surprising that the opinion of nine justices could be the deciding factor for such controversial issues. While the Supreme Court’s official responsibility is to interpret the law and examine laws for conformance with the constitution, the Supreme Court’s role has greatly been augmented in recent years. There are traditionally two constraints that prevent the Court from deciding a case on the merits. The first is for lack of jurisdiction. The second and often overlooked constraint is the political question doctrine. While courts are supposed to refrain from deciding issues that are “political questions,” this fact alone does not stop the court from reviewing a case, no matter how hotly debated or heated an issue is at stake (Barkow, 2002, p. 245).
The practical consequence of the Supreme Court hearing cases that are political questions is that the Court is second-guessing the policymaking of both the executive and legislative branches. One reason that such political questions are best left to Congress is that Congressman are in a better position than nine attorneys to evaluate the problem and address the issue on the ground. In theory, Congressmen represent the people who elected them. Congressmen are in touch with their constituents’ needs, wants, and desires. More often than not, Congressman coming from their elected states are much more informed and knowledgeable about the particular issues at hand.
Just recently, the Supreme Court singlehandedly decided one of the most contentious and divisive social issues of the nation; the legality of gay marriage. Before the Supreme Court took the case, individual states were respectively left to decide the issue of gay marriage for themselves. Gay marriage was legal in some states, and in others, it was not. But regardless of one’s particular views about gay marriage, the issue was one for the voting people to decide through their state legislatures. The issue, like most contested political issues in America, was left for the people to decide for themselves.
The issue of gay marriage reached the Supreme Court in the case Obergefell v. Hodges. In a sweeping opinion, the majority of the Court declared that there was a fundamental right to marriage protected by the Constitution (Obergefell v. Hodges, 2015). What was striking about the Obergefell decision was its breadth and far-reaching impacts. The wisdom of the Supreme court, composed on nine lawyers, opined the issue of gay marriage for the entire nation. It put a stop to the fiery political debates among citizens regarding gay marriage, and merely declared that gay marriage was a fundamental right nationwide.
While most cases that the Supreme Court decides do not have the sweeping effect that the Obergefell decision had, all decisions that the Supreme Court renders have an impact on state and local policies. The reason for this is that the Court’s decision is legally binding on all lower courts. Law is inherently conservative in nature, and principles of stare decisis are a powerful motivator for courts to adhere to prior decisions (Monaghan, 1988, p. 747). Even if a court opinion is not legally binding on a lower court, courts are usually reluctant to deviate too far astray from established precedent.
While the Supreme Court declares the law of the land, most legal issues will never be heard by the Supreme Court. This is because such an infinitesimally small number of cases make it to the Supreme Court. Of the 8,517 petitions to the Supreme Court, the Court granted only 78, which amounts to less than 1% (Thompson and Wachtell, 2009, p. 241). With so few cases ever reaching the Supreme Court, this means that lower courts play a tremendous role in shaping policy. Since the Supreme Court’s decision is dispositive with so few cases, the vast majority of cases are resolved in the lower federal or highest state courts.
In the federalist system of American government, there are two separate court systems; the federal courts and the state courts. Sometimes, one or the other court system has concurrent jurisdiction over a subject matter. For a court to hear a case in federal court, there must be federal question or diversity jurisdiction. But while some cases can be filed in either federal or state court, most cases originate in the state trial courts.
Like the Supreme Court on the national level, the highest court in the state has the last say on the Constitutionality of laws and their correct interpretation in the state. The method in which judges are chosen varies in every state. In most states, however, judges are elected by popular vote. Unlike federal court judges, who are appointed by the President, most state judges must run for election. With state judges elected and running for re-election, they are directly accountable to the voters. Thus, similar to executive and legislative public officials, if a judge’s performance is unsatisfactory to the constituents, the constituents can simply vote the judge out of office.
The American courts are the branch of government that do not receive a great deal of media attention, but have an exorbitant amount of sway, power, and authority just the same. It is the branch of government that is most far removed from public scrutiny and political accountability. While being free from the pressures of direct accountability may create some appearance of independence, the reality is that today’s judges are deciding largely political questions that are best left to other elected representatives, yet they are not on the hook when the people look to hold a public official responsible. The modern Supreme Court has transformed from mere interpretation of law to deciding political issues of national import. Since the Court has self-proclaimed its power of judicial review, there is no way to check the Court’s unfettered power.
Barkow, R. E. (2002). More supreme than court? The fall of the political question doctrine and
the rise of judicial supremacy. Columbia Law Review, 237-336.
Monaghan, H. P. (1988). Stare decisis and constitutional adjudication. Columbia Law Review,
Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
Paulsen, M. S. (1994). The most dangerous branch: The executive power to say what the law is.
Georgetown Law Journal, 217-345.
Thompson, D. C. and Wachtell, M. F. (2009). An empirical analysis of supreme court certiorari
petition procedures: The call for response and the call for the views of the solicitor
general. George Mason Law Review, 237-302.
U.S. Const. Art III, s. 2, c. 2.