The sudden passing of Justice Ruth Bader Ginsburg has now refocused our collective political attention toward the nation’s most powerful court. For the last several decades, every Supreme Court opening has brought with it the same call to rhetorical arms. Activists and interest groups on both sides gear up for battle. Millions of dollars are spent on ads. For both sides, there is a “life or death” feel to each nomination fight because so much is on the line. That is the problem. The fact every Supreme Court opening now seems like an MMA cage fight to the death is a clear sign the court has become far too powerful in our system.
Slowly but surely for the last several decades, the Supreme Court has pursued “mission creep” and drifted away from its solemn constitutional responsibility. It has become more like a super national legislature, frequently deciding all sorts of matters. Both political parties alike can cite issues on which the court has ruled that are best left to the people to decide, through their elected representatives. That is representative democracy.
The Supreme Court is a body that should move the country forward as it calls constitutional balls and strikes. It should not be the desired destination for ideological pursuits and political battles.
This notion is not new but has grown to be more evident with the court’s heightened role in our everyday lives, particularly each time it overrules Congress and state legislatures. After all, it is clear the next justice — and this new composition of the court — will govern the most critical issues of our time, ranging from health care and voting rights to immigration and guns.
As one of the three coequal branches of government, the Supreme Court is composed of nine unelected justices, each tasked with being a nonpolitical arbiter of our nation’s laws. Their role in our system of checks and balances is to interpret the meaning of the law and decide whether a law is constitutional. In return, the legislative branch makes the laws while the executive branch carries out the laws. Our nation was built on this belief that having three equal branches of government with separate functions was fundamental to democracy.
Yet, we’ve seen the court increasingly be involved in contentious battles between the legislative and executive branch that would have surely surprised the Framers of our Constitution. The court now looms over both branches without a watchdog of its own.
As a member of Congress, I know firsthand how difficult it is to enact legislation, which is why so few bills ultimately are signed into law. The committee system, a bicameral Congress, and the agreement of the executive all combine to provide plenty of checks. Partisanship also provides an additional check not envisioned by James Madison and the other founders.
But what about the Supreme Court? What checks its power? The court’s discretionary docket allows the justices to decide which cases to review and which to pass. When it does make a ruling, it is the final word on the subject. The only possible remedy the people have in order to overrule a court decision is to pass a constitutional amendment. It’s almost impossible to imagine getting two-thirds of the House of Representatives, two-thirds of the Senate, and three-fourths of the states to agree on anything.
Outside the United States, other countries do not govern law like our Supreme Court, nor do they do judicial appointments like us. For example, in Britain, any law the highest court disputes will eventually return to Parliament since it cannot be simply struck down as unconstitutional. Moreover, in most countries, the selection process is more independent, and justices do not serve for a lifetime. Here in the United States, these nine unelected, unaccountable justices are deciding on the most controversial issues of our time.
We have consistently failed to question whether the court has been rightly involved in the growing number of political and social issues best suited for the elected branches. There is no doubt it has taken up partisan conflicts, increasing its scope. In doing so, it has only exacerbated the tensions in our society.
With some Court decisions, conservatives may win. With other decisions, liberals may win. But each time the court takes upon itself the unilateral power to rule on a matter best left to the people, it is democracy that loses.
Boyle represents the 2nd District of Pennsylvania.