C3C David W. Croft
            Cpt Van Tassel
            Political Science 211 Honors
            30 September 1987
                      Does The Supreme Court Abuse Its Power?

                 There have been many complaints and theories of how the

            Supreme Court has a tendency to act as a "supra-legislature"

            (Woll 153).  It is proposed that the Supreme Court takes the

            power to make laws and set policies which rightfully belongs

            to the Congress and state legislatures.  They state that

            Justices exceed their authorized powers of judicial review

            and read their own opinions and views into the Constitution

            and are in fact "politicians in robes" (Woll 533, Sheldon


                 Alexander Hamilton's definiton of the Supreme Court's

            power of judicial review was argued in Federalist No. 78.

            He states that the main purpose of this power is a check on

            the legislature where the Supreme Court is an "excellent

            barrier to the encroachments and oppressions of the

            representative body ... to secure a steady, upright, and

            impartial administration of the laws."  He also gives the

            Supreme Court the power to rule on state laws by judging

            them against the Constitution:  "But the act of an original

            and superior authority takes precedence over that of a

            derivative and subordinate one, and so judges must adhere to

the Constitution before a statute" (Wolfe 74-75). Hamilton sets the power definition of the Court with those lines. Many feel that the fears of the Court taking power from the legislative and executive branches are unfounded on the basis that the Court is too weak to do so. Hamilton argued that since that it was dependent upon the executive for the enforcement of its decisions and had to be wary of the legislative check of impeachment, there could not be any "series of deliberate usurpations" of power (Wolfe 76). They are also limited in that they cannot initiate laws, only judge cases that are brought before them (Woll 515). Another executive check is the President's power to select the appointees to fill in vacant slots for Justice positions. All these checks on the judicial branch lead to a policy of what is known as judicial self-restraint -- where the Court never hands down a decision so controversial that the other two branches seek to reduce the Court's power (Woll 515). On the opposite side, Wolfe and many others feel that this power grabbing has occured: "This expansion was possible partly because 'seeds' of a more expansive judicial power were sown in early American history; ... partly because it was carried out by a federal judiciary that was on the whole, characterized by considerable personal and professional integrity; and partly because such a change happened to fit nicely the political agenda of influential groups during the period" (Wolfe 116 -117). It is true that the Court cannot enforce its decision but must leave this to the executive and legislative branches. For example, when the decision to ban public

school prayer came down, many states avoided complying with the "spirit" of the ruling by advocating a "moment of silence" to start off the school day. The Supreme Court banned this also in 1985 by redefining and rewording their intent (Woll 146). However, the Court does rely heavily on social support of their ruling and the reputation of the Court, referred to as its "judicial mystique" (McKenna 130). It would seem that the Supreme Court has been relying more heavily on its "judicial mystique" than its social support in the last few decades as it has ruled on issues that often went against the majoritarian viewpoint. "Judicial activism" is a term referring to the ability of the court to make policy and, in effect, laws. Justice Robert H. Jackson stated, "Most questions which have deeply agitated our people [have] found their way to the Supreme Court in the guise of private controversies between litigating parties" (Sheldon xiii). Others assert that many issues are not even widely publicly recognized until the Court makes a deliberation on them (Sheldon x). Whereas these two statements contradict each other in terms of the issue originally belonging to public and then usurped by the Court, they do show that Court has the power to deliberate on any issue it should so choose that is in its a opinion a problem. The Court also has the power to define and decide the scope of its powers and jurisdiction. In addition, by reserving the right to interpret and re-interpret the

Constitution's vague wording and also use phrase such as "a right of privacy may be fairly implied" (1965) they can justify any politically biased opinions as they see fit (Woll 515, 154). The "right to privacy" implication has allowed Congress the power to evaluate most civil rights statutes (Woll 154). In fact, the majority of overruled statues have dealt with civil rights and liberties (Woll 145). That the Court has the power to "make" law is supported by former Chief Justice Earl Warren: "We make law" (Sheldon xxi). There is evidence that the majority of significant social changes in the country ever since Brown vs. Board of __________________ Education (1954) have been forced by the Court (Woll 522). _________ However, Warren states that this is necessary because the legislatures fail to correct injustices and so must be made to do so. He says this is increasing "states's rights by giving power to the people" (Sheldon xx). He believes that this is justified by the fact that, in his opinion, people generally believe in equality and that the Congress is too slow in catching up on social issues (Sheldon xvii). For similar reasons, in the 1973 abortion case, "As [Justice Potter] Stewart saw it, abortion was becoming one reasonable solution to population control. ... The public was ready for abortion reform. ...But the state legislatures were always so far behind" (Kaus 33). However, there is data showing that at the time of the decision, the legislatures were indeed changing their laws on their own to reflect the

changing public opinion: "In the five years prior to Roe, ___ 18 states, with 41 percent of the population, made it easier to get abortions" (Kaus 33). Warren sees this as fit as "Congress has passed a number of civil rights laws which encompass a great many of the civil rights and I am sure that will mean the work of the courts will be easier now than it has been in the past" (Sheldon xvii). Both of these Justices appear to be justifying their decision based upon their perceptions of the social support of a liberal America. This is in direct contrast to the "original intent" or "Constitutionality" methods advocated by Hamilton. "Judicial restraint" is indeed a reality as both former President Richard M. Nixon in 1968 and President Ronald Reagan in 1980 both promised to appoint justices who they felt would curb this unbalancing trend of a "super- legislature" (Woll 523, 524). This executive (and legislative) check is probably the most effective and best way to limit the judicial power -- carefully, politically choose and screen an appointee who is willing to limit the Court's power once he becomes a justice. However, Nixon discovered that once appointed, a president has no control over a justice's decision (Woll 523). This alone leads us to believe that in recent years, the Court has not sufficiently practiced judicial restraint enough to escape the fears and concerns of the other two branches. Congress, too, has a hand by subjecting presidential appointees to

grueling interrogations for confirmation (the previously mentioned powerful legislative check), proposing ammendments, and probing into the personal affairs of of justices (Sheldon xii). Reagan's most recent appointee Robert H. Bork has already undergone the Congressional "interrogation" and now awaits a primarily liberal Congress's confirmation. As one liberal, the dean of Yale law school Guido Calabresi, put it, "I expect to support him because of his personal integrity, because of professional quality, and because while I have very strong disagreements with him, I have no reason to believe that anybody else that this administration would nominate and get confirmed would be any better in terms of those disagreements, and would probably be worse" (Taylor A7). Bork is extremely conservative in that his formula for judicial review is to look only at those rights specifically mentioned in the Constitution as being valid (Press 24). The rest he plans to reserve to the state legislatures. As his presence could very well reverse many previous decisions involving "implied rights" and "current interpretations", this frightens many liberals. If he is confirmed and does not compromise his viewpoint, this would be an excellent example of the executive check of the judicial branch's power. It my opinion that judicial branch has indeed been usurping the judiciary power. I am not extremely concerned with this as most of their recent decisions I either agree

with or have been raised in an atmosphere where I was programmed to concur with their decisions. I still feel that the executive appointment of Bork is important, however, as the Supreme Court may someday decide an issue for me that I have a different opinion on. If such were the case, Bork's influence would disallow such an occurrence and in fact leave the decision up to the states. Strongly influenced by George Orwell's anti-fascist novel 1984, I ____ feel that centralization of power to the national government limits my personal rights and freedoms. Because it is seldom that all the states unanimously agree on an issue, if I felt oppressed by the democratic majority, I would have the freedom to simply move across the state border lines. For instance, at the time of the abortion decision Roe vs ______ Wade, "[t]hree of every four Americans lived within 100 ____ miles of a place where abortion was legal, according to political analyst Michael Barone" (Kaus 33). Thus, the federal system is protected by a weaker judiciary and better reflects the needs of a regional populace. I wonder why the "pro-choice liberals" are opposing Bork?

Works Cited Kaus, Mickey. "A World Without Roe?" Newsweek 14 Sept. ________ 1987: 33. McKenna, George and Stanley Feingold, eds. Taking Sides: _____________ Clashing Views on Controversial Political Issues. ________________________________________________ Fifth Ed. Guilford, Connecticut: Dushkin Publishing Group, Inc., 1987. Press, Aric and Ann McDaniel. "Where Bork Stands." Newsweek 14 Sept. 1987: 24-34. ________ Sheldon, Charles H. The Supreme Court: Politicians in __________________________________ Robes. London: Glencoe Press, 1970. _____ Taylor, Stuart, Jr. "Bork's Colleagues Like the Man, Not His Thinking: Yale Friends Look Back at Top Court Pick." Gazette Telegraph [Colorado Springs, CO] _________________ 13 Sept. 1987: A7. Wolfe, Christopher. The Rise of Modern Judicial Review: ___________________________________ From Constitutional Interpretation to Judge-Made Law. ____________________________________________________ New York: Basic Books, Inc., 1986. Woll, Peter. American Government: Readings and Cases. ________________________________________ Ninth Ed. Boston: Little, Brown, and Co., 1987.

Transcribed to HTML on 1997-09-29 by David Wallace Croft.