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
xi).
Alexander Hamilton's definiton of the Supreme Court's
power of judicial review was argued in Federalist No. 78.
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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
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Education (1954) have been forced by the Court (Woll 522).
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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,
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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
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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
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Wade, "[t]hree of every four Americans lived within 100
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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.
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1987: 33.
McKenna, George and Stanley Feingold, eds. Taking Sides:
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Clashing Views on Controversial Political Issues.
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Fifth Ed. Guilford, Connecticut: Dushkin Publishing
Group, Inc., 1987.
Press, Aric and Ann McDaniel. "Where Bork Stands."
Newsweek 14 Sept. 1987: 24-34.
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Sheldon, Charles H. The Supreme Court: Politicians in
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Robes. London: Glencoe Press, 1970.
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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]
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13 Sept. 1987: A7.
Wolfe, Christopher. The Rise of Modern Judicial Review:
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From Constitutional Interpretation to Judge-Made Law.
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New York: Basic Books, Inc., 1986.
Woll, Peter. American Government: Readings and Cases.
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Ninth Ed. Boston: Little, Brown, and Co., 1987.