Is the US Supreme Court too powerful?

[All Along The Watchtower]

“Simple” question.

[CEO Mindset]

yes. no reason to have any kind of supreme court.

[brucejoel99]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

[MarkD]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

It's their power and their duty to do it, but they certainly do not always do it correctly.

As I posted yesterday morning, in 1958 Judge Learned Hand gave a lecture at Harvard Law School. His lecture was entitled "The Bill of Rights," and he turned the lecture into a small book as well, published in 1961, with the same title. Near the end he said,

It certainly does not accord with the underlying presuppositions of popular government to vest in a chamber, unaccountable to anyone but itself, the power to suppress social experiments which it does not approve. Nothing, I submit, could warrant such a censorship except a code of paramount law that not only measured the scope of legislative authority but regulated how it should be exercised.
Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies. No one can fail to recognize the perils to which the last forty years have exposed to such governments. ... For myself it would be most irksome to be ruled by a Bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture.

For the past 30-odd years I have realized that the Supreme Court treats the second sentence of the Fourteenth Amendment as if it is a code of paramount law -- thanks to a pair of interpretations that I maintain go far beyond what that sentence was plausibly intended to accomplish -- and in doing so, the Court behaves as if it is a Bevy of Platonic Guardians. It robs me of the satisfaction that we are all engaged in a common venture. Therefore I decided that we need to rewrite that sentence of the Fourteenth to make its meaning narrower and clearer. States should have clear guidelines what laws they cannot pass and the Supreme Court should have far less discretion in choosing what laws to strike down.

So I say yes, the Supreme Court is too powerful (although I am not saying it for the same reason many other red avatars here are probably saying it, via their votes in the poll).

[progressive85]

Yes, 90% of their rulings are unnecessary - they should be done by the People themselves through constitutional amendments or lobbying hard for Congress to take decisive action...

The Supreme Court is broken as an institution, craven, political, partisan, they are elitist, they always seem to take the side of the powerful and the mighty over the small and the weak!

[Donerail]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

The question here is not what Marbury says but whether it was correctly decided. It certainly reflects an assumption of judicial power that is not present in the Constitution, and one that the court did not exercise for much of its history.

Debatable whether that's a good thing — it's certainly good when, for instance, the court interprets the 14th Amendment to expand civil rights. Less good when they assume they have the power to gut the ACA. All about outcomes here.

[TDAS04]

Voted no, because I do support the concept a group of unelected judges checking Congress and the presidency.  However, granting this duty to life-time appointees is awful.  I would keep judicial review, but I really wish justices were just appointed to single terms of 15-20 years.  Maybe the court should be larger too, it should have 13 or 15 members.

[brucejoel99]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

The question here is not what Marbury says but whether it was correctly decided. It certainly reflects an assumption of judicial power that is not present in the Constitution, and one that the court did not exercise for much of its history.

Well, at the time, that power was a reasonable interpretation of what "judicial power" as vested by the Constitution meant precisely. The fact that it was written by a close friend of literal Framers (let alone a member of their same generation), many of whom were still alive & well at the time of the ruling, lends credibility to its validity. Since then, the fact that it's been upheld as the one of the cornerstone-precedents of American legal jurisprudence for 200+ years now has turned it into a legal bedrock that may as well be as solid as anything that is already explicitly mentioned in the Constitution itself.

[MarkD]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

The question here is not what Marbury says but whether it was correctly decided. It certainly reflects {1}an assumption of judicial power that is not present in the Constitution, and {2}one that the court did not exercise for much of its history.

Debatable whether that's a good thing — {3}it's certainly good when, for instance, the court interprets the 14th Amendment to expand civil rights. {4}Less good when they assume they have the power to gut the ACA. {5}All about outcomes here.

I can't believe how utterly opposite you and I think.
1) Article III, Section 1, of the U.S. Constitution: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Section 2, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. ..." A case of judicial review is simply one in which a party is claiming "That government [in the United States] is doing something that the U.S. Constitution does not allow." The other party is a government agent, or a named governmental entity, that is defending itself from the accusation, saying in so many words, "No, the Constitution allows us to do what we are doing." One of the parties is correct and the other is not. "The judicial Power" is simply the power to resolve that dispute between the parties, which will unavoidably involve the interpretation the provision(s) of the Constitution that the parties are arguing over.

2) Huh???

3) To me, it is completely and utterly unacceptable for the courts to expand the civil rights of anyone. The Court has done it several times, but it is wrong to do it. This is something that I am addressing with my proposal for rewriting the 14th Amendment to make its meaning narrower and clearer. In Skinner v. Oklahoma, for example, the Court created a new law: the law the majority opinion concocted was that for people to be able to reproduce is "one of the basic civil rights of man," and the Court assumed anything that important just has to be protected by the 14th Amendment. It's just gotta be! By concocting that new law out of thin air - and the Justices' imaginations - the Court was usurping the power to make law from the state legislature of Oklahoma. Other examples: in Levy v. Louisiana, the Court started expanding the civil rights of illegitimate children, and in Romer v. Evans, the Court started expanding the civil rights of gay men, lesbians, and bisexual people. Those two expansions have absolutely nothing to do with why the Equal Protection Clause was put in the 14th Amendment. These were two more instances of the Court usurping the power to make laws from the states.

4) When has the Court done that? Has the ACA been gutted?

5) Your willingness to accept that idea is just plain terrible. Choosing to accept nothing else than whether you got what you wanted is an absolutely terrible attitude to take to the duty of the judicial branch. The only thing that should matter is whether the Court's interpretation of whatever law they purport to be interpreting is accurate. In the case of King v. Burwell, did the Court give the ACA an interpretation that Congress intended? I feel quite confident that it did, and that has absolutely nothing to do with whether or not I like and welcome the ACA.

[Donerail]

It certainly reflects {1}an assumption of judicial power that is not present in the Constitution

I can't believe how utterly opposite you and I think.
1) Article III, Section 1, of the U.S. Constitution: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Section 2, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. ..." A case of judicial review is simply one in which a party is claiming "That government [in the United States] is doing something that the U.S. Constitution does not allow." The other party is a government agent, or a named governmental entity, that is defending itself from the accusation, saying in so many words, "No, the Constitution allows us to do what we are doing." One of the parties is correct and the other is not. "The judicial Power" is simply the power to resolve that dispute between the parties, which will unavoidably involve the interpretation the provision(s) of the Constitution that the parties are arguing over.

The court is granted the jurisdiction to decide cases, yes; the modern concept of judicial review goes one step further to conclude that the court alone has the superior power to determine the meaning of the Constitution. That is not an obvious conclusion from a system of separate and co-equal branches of government.

Which brings me to this point:

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

The question here is not what Marbury says but whether it was correctly decided. It certainly reflects an assumption of judicial power that is not present in the Constitution, and one that the court did not exercise for much of its history.

Well, at the time, that power was a reasonable interpretation of what "judicial power" as vested by the Constitution meant precisely. The fact that it was written by a close friend of literal Framers (let alone a member of their same generation), many of whom were still alive & well at the time of the ruling, lends credibility to its validity. Since then, the fact that it's been upheld as the one of the cornerstone-precedents of American legal jurisprudence for 200+ years now has turned it into a legal bedrock that may as well be as solid as anything that is already explicitly mentioned in the Constitution itself.

A reasonable interpretation, sure! There are lots of reasonable interpretations of every provision of the Constitution — it's an ambiguous document. But continuing to insist that the Supreme Court has this power doesn't really answer the thread's question, which is about whether it should.

{2}one that the court did not exercise for much of its history

2) Huh???

That's undisputed history — the court rarely if ever exercised the powers it claimed to possess in Marbury for a half-century after it was decided (the first time you see it after Marbury was Dred Scott). Marbury only really factors into the Court's decision-making during the Lochner era. Nobody really talked about Marbury as an important case before the 1900s, when conservatives realized it would be politically convenient to canonize the decision and its author to serve their own political ends. There's a good article about this by Davison Douglas that traces the references to and prominence of Marbury in various legal treatises.

{3}it's certainly good when, for instance, the court interprets the 14th Amendment to expand civil rights.

3) To me, it is completely and utterly unacceptable for the courts to expand the civil rights of anyone. The Court has done it several times, but it is wrong to do it. This is something that I am addressing with my proposal for rewriting the 14th Amendment to make its meaning narrower and clearer. In Skinner v. Oklahoma, for example, the Court created a new law: the law the majority opinion concocted was that for people to be able to reproduce is "one of the basic civil rights of man," and the Court assumed anything that important just has to be protected by the 14th Amendment. It's just gotta be! By concocting that new law out of thin air - and the Justices' imaginations - the Court was usurping the power to make law from the state legislature of Oklahoma. Other examples: in Levy v. Louisiana, the Court started expanding the civil rights of illegitimate children, and in Romer v. Evans, the Court started expanding the civil rights of gay men, lesbians, and bisexual people. Those two expansions have absolutely nothing to do with why the Equal Protection Clause was put in the 14th Amendment. These were two more instances of the Court usurping the power to make laws from the states.

Sounds great! Love when the court does that. Those all sound like good things.

{4}Less good when they assume they have the power to gut the ACA.

4) When has the Court done that? Has the ACA been gutted?

The Court concluded, based on some fairly spurious reasoning, that Medicaid expansion was unconstitutionally coercive. I question the Court's power to override Congress's interpretation of the Constitution — and, as the OP suggests, we should all be asking whether that is an ideal system of government.

{5}All about outcomes here.

5) Your willingness to accept that idea is just plain terrible. Choosing to accept nothing else than whether you got what you wanted is an absolutely terrible attitude to take to the duty of the judicial branch. The only thing that should matter is whether the Court's interpretation of whatever law they purport to be interpreting is accurate. In the case of King v. Burwell, did the Court give the ACA an interpretation that Congress intended? I feel quite confident that it did, and that has absolutely nothing to do with whether or not I like and welcome the ACA.

In most litigation it is fairly easy to make persuasive arguments in favor of both sides. This is a basic aspect of legal practice — you'll draft something and moot something for weeks and think it's airtight and then the judge just won't agree with you. There is no way to objectively divine which side is "correct" in litigation, which is why it's being litigated and not settled or dismissed. I like it when my side wins.

[brucejoel99]

Hot-take: no. It's the judiciary's right to interpret what the law is, & that's what they do. That's Marbury v. Madison 101.

The question here is not what Marbury says but whether it was correctly decided. It certainly reflects an assumption of judicial power that is not present in the Constitution, and one that the court did not exercise for much of its history.

Well, at the time, that power was a reasonable interpretation of what "judicial power" as vested by the Constitution meant precisely. The fact that it was written by a close friend of literal Framers (let alone a member of their same generation), many of whom were still alive & well at the time of the ruling, lends credibility to its validity. Since then, the fact that it's been upheld as the one of the cornerstone-precedents of American legal jurisprudence for 200+ years now has turned it into a legal bedrock that may as well be as solid as anything that is already explicitly mentioned in the Constitution itself.

A reasonable interpretation, sure! There are lots of reasonable interpretations of every provision of the Constitution — it's an ambiguous document. But continuing to insist that the Supreme Court has this power doesn't really answer the thread's question, which is about whether it should.

Even in that case, then, the answer to the question - at least as provided for by the Framers' vision within the confines of the Constitution - is still yes, because the power to interpret laws & determine how they interact with one another is inherent to judicial power, & since the Supremacy Clause explicitly makes clear that the Constitution itself can never be contradicted, including - if not especially - by statutory laws, then the judiciary's power to interpret laws as unconstitutional if necessary is implicitly already provided for within the Constitution itself. Now, it can be disagreed with as to whether or not the Framers were wrong to have implicitly provided for that in the Constitution, but at that point, the question at hand drifts toward becoming less about whether or not the Supreme Court is too powerful within the confines of our current form of government as established & provided for by the Constitution & moreso something along the lines of whether or not the Framers got it wrong & an alternative form of government with an alternative judicial power is better.

[MarkD]

I'm not going to pick at everything you've said, Donerail, but I still note that your judicial philosophy and mine could not be further apart. You and I are almost like Justices Felix Frankfurter and William O. Douglas, both appointed in 1939 by FDR, and whose philosophies toward the interpretation of law were diametrically opposite. In 1959, Frankfurter wrote a letter/memo to Douglas which included the statement, "You have had, I am sure, ample proof by now of my predominantly academic-minded way of dealing with issues before this Court, by which I mean my interest in the intellectual process by which we reach decisions and not merely the results that we reach." (Source: "Of Power and Right," by Ball & Cooper, 1992, page 93.) I remember when you, Donerail, posted a comment which implied that you knew Douglas was a result-oriented judge, and you didn't see anything wrong with that.

Here's one fact you've got flat-out wrong.

{2}one that the court did not exercise for much of its history

2) Huh???

That's undisputed history — the court rarely if ever exercised the powers it claimed to possess in Marbury for a half-century after it was decided (the first time you see it after Marbury was Dred Scott). Marbury only really factors into the Court's decision-making during the Lochner era. Nobody really talked about Marbury as an important case before the 1900s, when conservatives realized it would be politically convenient to canonize the decision and its author to serve their own political ends. There's a good article about this by Davison Douglas that traces the references to and prominence of Marbury in various legal treatises.

That only makes sense if you think the only kind of judicial review that the Court ever exercised between Marbury and Dred Scott was the power to strike down federal laws. The Supreme Court has always been busier with exercising review of cases questioning the constitutionality of state and local laws than with the review of cases questioning federal laws. One of my books is "The Supreme Court" Fifth Edition, by Lawrence Baum, published in 1995. Baum has two charts that record the number of occasions in which the Court struck down laws: one chart that refers to occasions the Court struck down a federal law, broken down per decade, and the other chart that refers to all the occasions the Court struck down a state or local law, again, broken down per decade. (And Baum documented his source for all this information.)
The chart for federal laws (first one hundred years)(page 201 of the book)
1790-1799   0
1800-1809   1
1810-1819   0
1820-1829   0
1830-1839   0
1840-1849   0
1850-1859   1
1860-1869   4
1870-1879   7
1880-1889   4

The chart for state or local laws (first one hundred years)(page 204 of the book)
1790-1799   0
1800-1809   1
1810-1819   7
1820-1829   8
1830-1839   3
1840-1849   9
1850-1859   7
1860-1869  23
1870-1879  36
1880-1889  46

But getting back to your judicial philosophy, it appears you have been influenced, directly or indirectly, by the school of thought known as "legal realism." Legal Realists were prominent in the faculty of Yale Law School starting in the late 1920s, and William O. Douglas was clearly in the thick of that movement during his years on that faculty. In 1947, Arthur Schlesinger Jr., in an article that appeared in FORTUNE magazine, wrote:

The Yale thesis, crudely put, is that any judge chooses his result and reasons backward. The resources of legal artifice, the ambiguity of precedents, the range of applicable doctrine, are all so extensive that in most cases in which there is a reasonable difference of opinion a judge can come out on either side without straining the fabric of legal logic. A naive judge does this unconsciously and conceives himself to be an objective interpreter of the law. A wide judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results.

I read that quotation in Robert Bork's "The Tempting of America," and I saw how Bork replied to that statement:

The old Yale thesis, as described by Mr. Schlesinger, is excessively cynical ... Not all judges choose their result and reason backward. Alexander M. Bickel [who also taught at Yale and was a close friend of Bork's, despite their differing political views] called this philosophy "arrested realism" and accurately observed: "It was never altogether realistic to conclude that behind all judicial dialectic there was personal preference and personal power and nothing else." Any lawyer or judge who is honest with himself knows that he often intuits a conclusion and then goes to work to see if legal reasoning supports it. But the original intuition arises out of long familiarity with the structure and processes of law. A judge will have such intuitions in cases where he has not the remotest personal preference about the outcome. A process like that must occur in all intellectual disciplines. But the honest practitioner, including the lawyer or the judge, also changes his mind when the materials with which he works press him away from his first tentative conclusion. I have had, as many other judges have, the experience of reaching one result after reading the briefs and reversing my position at oral argument, or of voting one way at the judges' conference after argument and then changing my mind in the process of reading, discussion, and writing. I have had the even less pleasurable experience of publishing my opinion and then concluding I was wrong upon reading the petition for rehearing and having to change the result of the case. Many judges can testify to similar experiences. If that is true, and it is, then it is not true that all judges choose their results and reason backward.
But it is true for some judges. We have canvassed instances of it in this book [obliquely referring to the Lochner era]. One can only say with Bickel, "[T]hat is a reality, if it be true, on which we cannot allow the edifice of judicial review to be based, for if that is all judges do, then their authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy." To accept that view of the judicial process is profoundly cynical, and yet it is regularly taught in our best law schools. Indeed, it is hard not to teach it even for a professor who explicitly condemns it; the casebook teaches cynicism. At Yale, constitutional law is taught in the student's first semester, and the casebook collects the opinions of Justices who did and who do adhere to a philosophy of voting for interests and personal values. The students, who are highly intelligent, quickly come to see that the opinions they read rend the "fabric of legal logic." They see that much of constitutional law has in fact been politics. If some Justices of the Supreme Court of the United States regularly perform in this way, it is almost idle for the professor to insist that things need not be this way. In any event, many students find the casebook's lessons congenial. They like the political outcomes of the cases. It takes a great deal of self-discipline to renounce a philosophy that some of the most renowned figures in the law hold and that produces results you like. To quote Bickel once more, "The sin [of cynicism] is mortal, because it propagates a self-validating picture of reality. If men are told complacently enough that this is how things are, they will become accustomed to it and accept it. And in the end this is how things will be." [pages 70-72 of "Tempting."]

[LBJer]

I voted no.  Given that the Supreme Court is one of the three branches of government, if you say the Court is too powerful, you're effectively implying one of both of the other branches should be more powerful.  I'm not at all convinced of that.  The president and Congress are both elected, and we need a powerful Court that's not beholden to public opinion (even though it's definitely influenced by public opinion in practice).  The Court can and has made wrong--sometimes drastically wrong--decisions, but so have presidents and Congress.  

[All Along The Watchtower]

The problem with the checks and balances argument is simply, who can possibly "check" or "balance" the Supreme Court?

We have this idea of the federal judiciary as an objective arbiter of The Law "calling balls and strikes" (three guesses as to who said that) yet on the most controversial and important political and social issues in the US this is clearly not the case. The whole conceit of the Court is that it wraps itself in secrecy and respectability as being "above" politics, as being a sort of referee between the legislative and executive branches -  while often acting as a political actor itself. And the American people can't simply vote justices or lower court judges out of office after two/four/six years.

[LBJer]

The problem with the checks and balances argument is simply, who can possibly "check" or "balance" the Supreme Court?

We have this idea of the federal judiciary as an objective arbiter of The Law "calling balls and strikes" (three guesses as to who said that) yet on the most controversial and important political and social issues in the US this is clearly not the case. The whole conceit of the Court is that it wraps itself in secrecy and respectability as being "above" politics, as being a sort of referee between the legislative and executive branches -  while often acting as a political actor itself. And the American people can't simply vote justices or lower court judges out of office after two/four/six years.

The president and Congress are supposed to be "checks and balances" on the Court.  Even if you think they're inadequate, what else could there realistically be that wouldn't be--or at least have a high potential of being--political itself?  And it was because Americans CAN vote out Congress that not only was Donald Trump acquitted in both impeachment trials even though he was obviously guilty, but that until the Electoral College voted, very few Republicans in Congress were even willing to acknowledge the obvious--that Biden had won the 2020 election!  It was both pathetic and scary.  Being beholden to the voters is not necessarily a good thing.  That's why we need a strong branch of the government that's NOT beholden to them--even if it can obviously be partisan itself. 

[beesley]

The executive and legislative branches can easily function as a check on the Supreme Court in theory, but they don't. Court packing would be a greater check, but that isn't politically palatable at the moment. Constitutional amendments could be a check on the court in practice from outside the system, but the constitutional amendment process entrenches the Court's power. It is not wrong to say the US Supreme Court firmly has its place in the the tripartite system of government, it's just whether Congress and the executive can realistically exercise that power to check it.