The Supreme Court Has an Undemocratic Amount of Power and It Knows How to Use It

The Supreme Court Building, Washington D.C.

By Dalynn Holtzclaw ‘26

In conventional American belief, there is a general assumption that all three branches of the United States federal government are equal. Even when pressed to pick the most powerful branch, some people would not choose the Judiciary. Congress can write laws and the President can issue executive orders, what can the Supreme Court do? The Supreme Court has the final say on the legality of these laws and orders and with no check on its power, the court can sometimes easily impose its will onto the other branches.

The Undemocratic Power

It is imperative to first explore and define “undemocratic.” Democracy, as defined by the Merriam-Webster dictionary, is “a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” If being democratic is adherence or relation to democracy, then any ideology or institution that does not give the foremost powers to the people is undemocratic. 

The Supreme Court does not give power to the people in the best manner it could. The justices of the United States’ most high court, the nine people our nation trusts to interpret the law of the land, are not even elected by the people. The Constitution provides only that the justices “shall hold their offices during good Behavior.” Following this vague guideline, the federal government allows justices to serve on the Supreme Court for as long as the justices desire, given that they do not pursue actions which could be considered grounds for impeachment. This long accepted interpretation essentially gives the justices a safety net of ambiguity as well as complete free reign. Since the establishment of the Supreme Court, only one Justice, Samuel Chase, has ever been impeached. This number either means that Supreme Court justices have been historically just or the bar for “good Behavior” is entirely too low. Justices can sit on the stand with little fear of impeachment. This freedom, coupled with their lack of constituents, can be a truly destructive combination. 

Supreme Court justices are not elected but rather nominated by the president. The nomination can, of course, be overruled by the Senate, so it is in a nominee’s interest to have bipartisan appeal or full support of the majority party. Nonetheless, after confirmation, justices have no constituents to answer to. This freedom is generally thought to keep justices out of partisan politics, but without political accountability, justices must rely on their personal interpretations of the Constitution to review the actions of Congress and the Executive. In other words, nine people that the nation did not elect have the power to overturn laws and sentences based on their own moral code. If justices were popularly elected or had term limits with possible reinstatement based on a national vote, they would have to think more largely about how their cases affect the nation. The opposing argument is that if justices had the burden of re-election worries, they would be tainted by the political atmosphere of the federal government. According to whitehouse.gov, “Since justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases.” I argue that justices need to be submerged in partisan politics. If justices are seemingly uninterested in United States politics, how can their actions be expected to reflect the beliefs of the people they serve? 

Not only is the Supreme Court’s power undemocratic in nature, it is undemocratically unchecked. The Founders created the system of checks and balances in order to protect the people. In Federalist Paper No. 51, James Madison expressed his belief that a government could not properly serve its people without being able to control itself. We see this concept all throughout our government: the Presidential veto, congressional overturning of a veto, Senate confirmation of treaties, and more. Yet there is no check on judicial review. Once the verdict on a case is handed down, that verdict becomes precedent. These justices with no incentive to accurately represent what the people want have the final authority on interpreting the constitutionality of the nation's laws. How can we expect a power so out of line with checks and balances to properly protect the interests of the people?

Using a Loaded Weapon

Until recently, many Americans probably could not remember a time when they felt the Supreme Court encroaching on their civil liberties or quality of life, but it has happened before. Immediately after he was inaugurated in March 1933, President Franklin Delano Roosevelt began implementing New Deal policies in an attempt to pull the United States out of the Great Depression. These policies were expansive, including the National Industrial Recovery Act, Agricultural Adjustment Act, and the Bituminous Coal Conservation Act, all of which were later overturned by the Supreme Court. These acts and others also made headway for state laws enacting provisions like a minimum wage. State minimum wage laws were also later overturned. 

The National Industrial Recovery Act (NIRA) allowed the president to require industries to write labor codes and gave laborers the right to collective bargaining and forming a union, both of which improved labor conditions immensely. In A.L.A. Schechter Poultry Corporation v. United States, the NIRA was unanimously struck down as unconstitutional on the grounds that Congress had given the President too much power. This verdict can be viewed as a regulation of executive power but it in no way represented the people’s best interests. The Agricultural Adjustment Act (AAA) taxed agricultural commodities and gave the proceeds to farmers who agreed to cut their output in an effort to fix overproduction. The AAA was then overturned in 6-3 decision of United States v. Butler. The six-justice majority included the “Four Horsemen”: Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, four justices who continuously opposed Roosevelt’s progressive reforms. The other two justices in the majority were Charles Evans Hughes and Owen Roberts, who often straddled the ideological fence. Once the AAA was overturned, produce prices drastically decreased and farmers grew increasingly impoverished. The Bituminous Coal Conservation Act—also known as the Guffey Coal Act––regulated prices, maximum hours, and fair labor practices within the coal industry. Overturned in the 5-4 decision of Carter v. Carter Coal Company (the majority being the Four Horsemen and Owen Roberts), the Guffey Coal Act could no longer protect coal workers, subjecting them to local working condition laws. Not only did this verdict dramatically hinder the working conditions for many coal workers, it was widely regarded as the death of a national labor condition law. 

These three cases spelled doom for any more New Deal policies but also foreshadowed the Supreme Court's overturning of state laws. In June 1936, the Supreme Court ruled that New York’s minimum wage law was unconstitutional. The decision was again 5-4 with the Four Horsemen and Owen Roberts in the majority. In a press conference after the verdict, FDR accused the Supreme Court of creating a “no-man's-land where no Government restate or Federal can function.” Wisconsin senator Robert La Follette Jr. described the state of the government as having “the validity of laws depend on the whims of five fallible men.” In reality, this assessment has always applied to the Supreme Court. If five of the current justices chose to begin cohesively practicing judicial activism, they could eventually mold the American government to fit their personal preferences. 

FDR is Dead and We Have Minimum Wage: So What Is the Big Deal?

While it is no longer the 1930s and many provisions that the Supreme Court ruled unconstitutional are now realities, the court is still handing down decisions that negatively affect and poorly represent the people. In Shelby County v. Holder decided in 2013, the Supreme Court invalidated part of the Voting Rights Act. The court overturned Section 4(b) which, when paired with Section 5, offers protections against racial discrimination in election laws. In the majority opinion written by Chief Justice John Roberts, it is explained that the court believes the discriminations Section 4(b) was created in response to are no longer applicable. Just last year the Supreme Court blatantly fostered elitism by lessening campaign financing restrictions in the decision of Federal Election Commission v. Ted Cruz for Senate. While we are not observing the obvious opposition to progressive policies that was present during the New Deal era, it is apparent that the Supreme Court is still very able and willing to disregard the people’s best interest when deciding some cases. All signs point to a potential danger of history repeating itself.