Democracy and the Supreme Court
Democracy and the Supreme Court represent a complex relationship between judicial authority and democratic ideals in the United States. The Supreme Court, while making decisions through majority votes, comprises justices who are unelected and hold lifetime appointments, which raises questions about the democratic nature of its power to overturn legislative and executive actions. Central to this discussion is the principle of judicial review, established in the landmark case Marbury v. Madison (1803), allowing the Court to invalidate laws that it finds unconstitutional. This "counter-majoritarian" aspect highlights a tension between the Court's role and traditional democratic values.
Different conceptions of democracy complicate the assessment of the Court's impact on democracy. A substantive view focuses on the Court's ability to uphold liberty and equality, as seen in cases like Brown v. Board of Education (1954), where the Court prioritized individual rights over procedural legitimacy. Conversely, procedural and structural views emphasize the importance of democratic processes, suggesting that laws passed by Congress should generally be upheld unless there is clear evidence of constitutional violation.
Additionally, the concept of federalism plays a role in this dynamic, where the Tenth Amendment protects state powers, sometimes viewed as antithetical to the substantive goals of liberty and equality. The Court's shifting stances over time, especially under different chief justices, reflect ongoing debates about the balance between state and federal authority, as well as the broader implications for democratic governance. Understanding these themes offers insight into the ongoing discourse surrounding democracy in relation to judicial power in the U.S.
Democracy and the Supreme Court
Description: Rule by the mass of people through institutions, processes, and principles that disperse power from the few to the many.
Significance: While members of the Supreme Court are generally regarded as working to support democratic values, the question of whether the Court advances or impedes democracy rests on what conceptions of democracy are applied.
In some ways, the Supreme Court is an unlikely focus for a discussion of democracy. Within the Court itself, decisions are made democratically by majority votes. On the other hand, the Court’s justices are unelected officers with lifetime appointments who can overturn the actions of the elected officers of the executive and legislative branches.
Judicial Review
An established feature of the American government is the principle of judicial review. Firmly established in the Supreme Court’s Marbury v. Madison (1803) decision, this principle gives courts the power to invalidate the actions of the executive and legislative branches on constitutional grounds. This power poses what constitutional authority Alexander Bickel called the “counter-majoritarian” difficulty. The ability of a tiny body of appointed officials to strike down acts of popularly elected officials seems more characteristic of aristocracy than democracy.
The Framers of the U.S. Constitution were wary of the danger of granting too much power to the masses because of excesses they associated with the ancient Western democracies. However, their own experiences with the authoritarian British government made them committed to popular control of government in some form. They eventually settled on a system of mixed government, one with elements of popular democracy, aristocracy, and even monarchy. They wrote no explicit provision for judicial review in the Constitution. Nevertheless, the principle of judicial review is consistent with the principle of checks and balances they provided in the Constitution.
Variant Conceptions of Democracy
Any considerations of whether the Supreme Court advances or impedes democracy require that careful distinctions be made among basic conceptions of democracy. Under a so-called substantive conception, judicial decisions accord with democracy only to the extent that they uphold principles of liberty and equality. For example, in First Amendment cases on which the Court has ruled, its justices have consistently opposed content-based restrictions on free expression. This tendency appears to advance democracy insofar as it protects individual liberties and favors equality.
By contrast, procedural conceptions of democracy emphasize the processes through which public policies are made. This approach recognizes that people often disagree over which policies protect substantive democratic values of liberty and equality. What matters is that law is a product of democratic processes. Under a procedural approach, it is presumed that any federal law that wins majority votes in both houses of Congress and has been signed by the president, or passed over a presidential veto, is constitutional. The Supreme Court’s presumptive deference to most laws forged by this process is itself thus consistent with democracy.
The Court’s Brown v. Board of Education (1954) decision illustrates contrasting views of democracy because it involved education, which is connected with both liberty and equality issues. During the years leading up to the decision, the Topeka, Kansas, board of education operated a system of segregated public schools under the separate but equal principle articulated in the Court’s 1896 Plessy v. Ferguson decision. In the Brown case, no proofs were advanced that there had been defects in the process by which Topeka designed its segregated school system. Nevertheless, the Court unanimously struck down its segregated schools under principles articulated in the equal protection clause of the Fourteenth Amendment. The Court ruled that segregated schools undermine the liberty interests of African American children, and the very concept of “separate” is “inherently unequal.” In making this ruling, the Court looked past form into substance.
Structural Conceptions of Democracy
Related to procedural understandings of democracy is a structural conception. According to this conception, structural principles of government, such as federalism and separation of powers, advance democracy by distributing power. Under this view, the lawmaking processes, such as those considered above, are legitimate only if the principle of separation of powers is maintained. Bicameralism and presentment embody democratic processes only if Congress and the president are not impermissibly invading each other’s powers.
Through the last decades of the twentieth century, the Court wavered between substantive and procedural/structural conceptions of democracy. This tendency is illustrated in two post-Brown education cases to which the Court applied the equal protection clause.
In San Antonio Independent School District v. Rodriguez (1973), a challenge was brought against the Texas state school-financing scheme that spent nearly twice as much money per pupil in some school districts than in others. Although this disparity was a seeming affront to the democratic principles of liberty and equality, the Court did not overturn the system. Instead, it ruled that there was no basis for “judicial intrusion into otherwise legitimate state activities” in the absence of proof of defects in the process by which the financing scheme was enacted. In that case the democratic principles of separation of powers and presumptive judicial deference to process outweighed the democratic principles of liberty and equality.
The Court’s 1982 Plyler v. Doe decision produced a different result. In that case, a challenge had been brought against a Texas law allowing local school districts to deny free public education to children not legally admitted into the United States. Although the Court conceded its Rodriguez rule that education is not a fundamental interest for equal protection purposes, it rendered the liberty and equality interests of immigrant children so compelling and the state’s interest in denying them an education so insubstantial, that it invalidated the Texas law by a 5-4 majority. The Plyler decision was later generally considered an anomalous ruling whose authority was limited to its facts. Nevertheless, it was clear that in that case, as in Brown but in contrast to Rodriguez the Court elevated the substantive conception of democracy above procedural/structural concerns.
Federalism and Democracy
In American constitutional law, federalism is rooted largely in the Tenth Amendment, which protects state sovereignty against undue encroachments by the national government. In one sense, this is clearly a democratic impulse, insofar as it checks excessive concentrations of power. On a substantive understanding of democracy, however, protection of state power is viewed as antidemocratic by those who believe that liberty and equality are better served by policymaking at the federal level. During the decades following the New Deal, the Supreme Court routinely deferred to the expansion of congressional power under the Constitution’s commerce clause to regulate even local activity. Many saw this as democratic insofar as Congress was the source of progressive legislation, such as the Civil Rights Act of 1964. A major tendency of the Court under Chief Justice William H. Rehnquist, however, has been to reverse this trend by reasserting states’ rights.
Bibliography
Bessette, Joseph M. The Mild Voice of Reason: Deliberative Democracy and American National Government. 2nd ed. U of Chicago P, 2010.
Bickel, Alexander. The Least Dangerous Branch. 2nd ed. New Yale UP, 1986.
Bowie, Nikolas. "How the Supreme Court Dominates our Democracy." The Washington Post, 16 July 2021, www.washingtonpost.com/outlook/2021/07/16/supreme-court-anti-democracy/. Accessed 8 Apr. 2023.
Ely, John Hart. Democracy and Distrust. Special ed. Harvard UP, 2004.
Fernbach, Alfred, and Charles J. Bishko, eds. Charting Democracy in America: Landmarks from History and Political Thought. American UP, 1995.
Mueller, Dennis C. Constitutional Democracy. Oxford UP, 2000.