The Supreme Court Is Undemocratic and Its a Good Thing

Slate Writer Ian Millhiser posted a vapid article on a respectable publication recently in regards to the state of the democracy in this country and the Supreme Court. He argument was simple: SCOTUS is undemocratic with its lack of a public electoral process and life-time terms and needs to be reformed. To which I say: Bollocks!

When the Founding Fathers crafted the judiciary they enshrined the Supreme Court and tasked the branch with creating all the necessary lower courts to enforce federal laws. These lower courts were called circuits mostly because judges and lawyers used to ride around in circuits from town to town trying cases and resolving disputes between parties. In the early days of the country lawyers and legal minds were far and few between especially in rural areas and the small towns relied on the passing of these people to help them resolve their problems. As the country grew, circuits grew. Abraham Lincoln was a circuit riding lawyer for a time early in his career. As time went on and the population grew the states created court systems and the federal government changed the way it ran its own courts and the federal courts govern their 9 circuit areas from fixed places in our modern system. When lawyers need to file a federal case they do so in the circuit where the problem began. The President appoints judges to all of these positions so that the federal courts begin to reflect the changing moods of the political realm while not being stuck with the political whims of the moment. Trust me, we don’t want our courts to swing with the wind. We would end up with a very uneven application of our laws, more so than we already have in the nation. The Supreme Court has also grown from time to time. It started at 3, then expanded to 5, then 7 and now 9 justices all of whom over see 1 circuit of lower federal courts.

If there is one thing Congress hasn’t done is use its authority to regulate the judiciary. Does the federal judiciary need some regulation? Absolutely.

The Election of 1800

The Supreme Court rose to prominence as the final legal authority in this nation not only within the Constitution but in practice during the election of 1800 when John Adams was using the last days of his presidency to appoint a host of judges favorable to his party to newly created circuit judgeships before Thomas Jefferson could get in. In Marbury vs. Madison the Supreme Court decided that this was unconstitutional. This was a moment in history where democratic process (the system was racked by party politics at the time, sound familiar?) was failing the American people and the Supreme Court was able to solve the problem in a fairly efficient matter. Another example is the Bush v. Gore decision of 2000 over votes in Florida. In that moment, there was no Constitutional recourse (the House of Representatives decides in the case of a tie but no other provisions are given). It was again up to the Supreme Court to defend the Constitution as best it could and also decide something fairly.

It’s our System: In Might not be Convenient

In our system of government, no other institution is able to decide things in a fair and decisive manner that immediately becomes law without getting blended through the democratic process, which waters things down. I am not against democracy per se but there are moments (gay rights, civil rights, voting problems) that you need an institution that can make an impartial decision and not be racked by the politics of the moment and forced to do whatever is politically expedient. In this country, that is enshrined in SCOTUS and it is an important job. Every institution, except parts of the bureaucracy and the judiciary are subject to politics and the whims of the majority. As important as democracy is, often the will of the majority is wrong. Our system allows the majority to be heard and for the minority to be protected while the majority moves forward and there is no greater example of this dichotomy than the Supreme Court.

Now you might say, “Cameron, SCOTUS is political because its members are appointed by the President and when we have a liberal president we get liberal justices and when we get a conservative president we get conservative justices. I am not opposed to that system and from time to time justices surprise us and act outside of their own political leanings. This also leaves us with a court that is diverse in its opinions on legal matters and is not stuck with the politics of any moment but rather is reflective of political moods over a long period of time due to lifetime terms.

The Bottom Line

It may be not be expedient, it may not be glamorous but this “democratization” of every institution just leads to gridlock. A government needs balance. You have to balance the needs of the majority with the ability to make a decision quickly when the moment arrives. Our system does that fairly well without disenfranchising too many people. In a country such as ours, with such inequality, we need institutions like SCOTUS more than ever before. Not every institution needs to be held to the ever-changing and unreliable whims of the people.