When a Court of Law becomes a political body, it raises difficult questions for democracy itself.
Every year, the Supreme Court agreed to hear about fifty cases, those with issues over which Courts of Appeals have disagreed or that are uniquely important. This term, the Supreme Court will hear a case about the prosecution of January 6 defendants and one on mifepristone, a common abortion pill, among other hot-button topics.
On paper, the issues in these cases are technical. What is the scope of the federal law on obstruction of congressional proceedings? Did the FDA follow proper protocol in approving Mifepristone for sale to the public? The legal arguments take shape in the parties’ petitions and responses, which are available on the Supreme Court’s website.
The headlines will not be so sedate. They will scream “Supreme Court Bans Abortion Pill” if the FDA loses, and “Supreme Court Clears January 6 Defendants of Wrongdoing” if the case goes against the Justice Department. Exaggerations notwithstanding, the media may have it right. The Supreme Court is more of a political body than a judicial one.
In its ideal form, the judicial branch, which Alexander Hamilton called the least dangerous in the American system of government in the Federalist Papers, sits unmoved by political chaos, a blind goddess wielding a scale of pure justice. Yet, beneath the marble facade, a different story unfolds. The Court often dances a jig to political music, and its opinions attract applause or criticism on a partisan basis.
The evidence is stark. Justices, chosen through a hyper-politicized process, arrive at the bench pre-loaded with ideological baggage. Confirmation battles are spectacles where candidates are grilled on hot-button issues, not judicial temperament. Once on the bench, divisive rulings often fall along predictable ideological lines, leaving the public with the unsettling feeling of watching a rigged game. Justices are players in the political arena, not the referees Chief Justice John Roberts once promised.
Perhaps it is inevitable. The Court’s opinions ripple through the political landscape, galvanizing bases and shaping the national agenda. See how Dobbs, which overruled Roe v. Wade and left abortion rights to the whim of gerrymandered state legislatures, sent Democrats to the polls. This outsized power, coming as it does from a body insulated from the democratic churn, raises troubling questions.
The consequences are not merely theoretical. Faith in the Court, once a cornerstone of American democracy, is eroding. Public trust in the institution has dropped. Gallup reported on September 29, 2022 that the Court’s approval rating plunged to 40%, its lowest ever recorded. This erosion, if unchecked, risks fracturing the very foundation of the rule of law.
It also turns the least dangerous branch into the most dangerous court. Its opinions are untouchable. When the Supreme Court interprets an act of Congress, that body (were it not so dysfunctional) can amend or repeal the law. But when the Court interprets the Constitution, its word is final and immovable because the Constitution is, by design, devilishly difficult to amend. In a divided country, it may well be impossible.
So, what can be done? Justices serving staggered terms of eighteen years would guarantee stability, and every president would nominate the same number of Justices in a term, taking a bite out of the confirmation process’s politicization. The Senate could also receive the right to overrule the Court’s interpretation of a constitutional question by a three-fifths supermajority, especially in cases of divided opinions.
But that requires a constitutional amendment.
JB Roth is a lawyer and writer in Jacksonville, Florida. He has followed the proceedings of the Supreme Court with keen, intellectual interest all of his adult life.
