Is the Supreme Court Too Powerful?

In the United States of America there is one Supreme Court and several lower courts. Each court has its own authority and must adhere to the confines of that authority. This paper will attempt to ascertain the scope and power of the Supreme Court. This writer will try to provide some elucidation into the enigma of the Supreme Court by answering the following questions through research and conjecture: What is the role and function of the Supreme Court? Should there be strict interpretation of the Constitution or should the Interpretation reflect the changes of society? Is judicial review a democratic process or does it usurp the power from the elected bodies of government? And should an un-elected assembly be granted the authority to reject a law or decision made by an assembly of representatives elected by the people with a simple majority?

As to the first question, first one should define the Supreme Court. Merriam-Webster's Dictionary of Law defines the Supreme Court as "the highest court in the judicial branch of the U.S. government that has original jurisdiction over controversies involving ambassadors or other ministers or consuls but whose main activity is as the court of last resort exercising appellate jurisdiction over cases involving federal law" ("Supreme Court"). Thus it is the role or function of the Supreme Court to serve as the final curtain for a case that is accepted into its courtroom. The Court does have original jurisdiction over certain cases, but those are limited to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a States shall be a Party" (U.S. Const., art. 3, sec. 2). In other words, the Supreme Court has mostly appellate jurisdiction. It also serves as a proverbial conservator of the other branches of the federal government. It does so by striking down laws that go against the United States Constitution. This role was established not in the Constitution, but by Chief Justice John Marshall in the majority decision of Marbury v. Madison, 5 U.S. 137 (1803). After much expounding, Justice Marshall declared that the Judiciary Act of 1789 was unconstitutional, thus establishing judicial review in the United States (Marbury v. Madison, 5 U.S. 137 [1803]). Justice Gibson responded this decision in his dissenting opinion in the case of Eakin v. Raub, 12 Sergeant & Raule (Pa., 1825) when he states "the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes" (Eakin v. Raub, 12 Sergeant & Raule [Pa., 1825]). Of course, a case from the Pennsylvania Supreme Court, does not bind the country to its decisions, let alone the dissenting opinion from one of those decisions.

Political and judicial parties alike have debated the second quandary, for centuries. Should the United States Constitution be interpreted by the letter or as it would apply to changing society? This writer believes that the interpretation should as closely as possible reflect the original intentions its framers, while providing the flexibility necessary to provide for incidents unforeseen by its framers. For example, the framers never would have guessed there could be piracy without connection between the pirate and the pirated, but there is Internet piracy as was seen with Napster. At the same time, the framers would not have guessed that women would be allowed to vote, but now that is a right granted by the Constitution. For situations like the first example, the judiciary could liberally interpret the rights that are granted in the Constitution so that a law passed prohibiting such an action would be constitutional. "The right of the people to be secure in their...effects, against...seizures, shall not be violated" (U.S. Const., amnd 4). This Amendment was originally designed to protect citizens from the government, but it could in this case protect them from each other as well. In the latter case, the Legislature added suffrage for women to the Constitution, which allows for strict interpretation by the Court (U.S. Const., amnd 19). Most cases are not as cut and dried as these, but the main point is still there. The Court should be allowed to bend the words of the Constitution to fit the changes of the society, but not to stray so far from its original intent as to change its meaning entirely.

Moving on to the third question. Is judicial review a democratic process or does it usurp the power from the elected bodies of government? Judicial review is a democratic process from this writer's point of view. The federal government is constructed of three basic branches: the executive, the legislative, and the judiciary. Each has checks and balances on the other two. The legislative checks the judiciary in the following ways: the Senate approves the judges, the House of Representatives has Impeachment power, the Senate holds Impeachment hearings. It balances the judiciary with the power to initiate constitutional amendments, sets courts inferior to the Supreme Court, sets jurisdiction of courts and alters the size of the Supreme Court (Mount). The executive branch has the following checks on the judiciary with the power to appoint judges and it balances it with the power of pardon for federal cases (Mount). Without judicial review, there is only one limited check and one balance on the legislature and no balance on the executive. The judiciary would make sure that the legislature has "good behavior," that judges' pay is never cut, and that during a Presidential Impeachment, the Chief Justice sits as the President of the Senate (Mount). Without judicial review, the power of the Court is extremely limited. It is not a usurpation of power by the Supreme Court, but a conscious effort on its part to uphold the integrity of the United States Constitution.

Which brings this paper to the last question: should an un-elected assembly be granted the authority to reject a law or decision made by an assembly of representatives elected by the people with a simple majority? First it must be established that the Supreme Court cannot arbitrarily decide to strike down or uphold a law. The issue must first be presented to the Court by either an appeal or in those limited cases listed above, brought as a legal question without prior trial. When a case is appealed for any reason, there is an indication that something went wrong somewhere, and now a complainant is requesting some remedy for that wrong. This is an indication that the law passed by the legislature, or whoever, needs clarification. However, there is no method of getting the legislature to clarify its laws and no remedy for the injured party if it did clarify. The very etymology of judicial means to determine or judge from right or law ("Judicial"). And Alexander Hamilton wrote in the Federalist Number 78, " a constitution is, in fact... a fundamental law" ("Judicial Review"). Therefore, who else but the judiciary should determine what a law means or says?

Critics of judicial review are many. One such critic was Robert Yates of New York, and as a delegate to the Constitutional Convention he said, "[I]n their decisions they will not confine themselves to any fixed established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, [sic]... will have the force of law; because there is not power provided in the constitution, that can correct their errors or control their adjudications" ("Judicial Review"). However, rejoinder to that would be that there are established checks and balances, which are listed above, with which the other branches of government can overturn a judicial opinion. Also, as was the case with Dredd Scott v. Sandford, (1857), the Court made a mistake but also corrected it with cases like Brown v. Board of Education, 347 US 483 (1954). Granted that particular example took nearly one hundred years to correct, but the mood of the country at the time was very much in turmoil over the topic of slavery and black rights for that entire time and beyond. For example, it took several civil rights cases like Brown v. Board of Education, 347 US 483 (1954) and three amendments to the Constitution before black men were allowed to vote, be people, etc. And it was not until the Supreme Court had stricken certain laws for constitutionality before those three amendments were passed.
Another critic is Justice Gibson, who pronounced that "judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstance, to reconcile it to their duty to deprive a human being of life." He continues with the response given by a judge, "'You do not deprive a prisoner of life by finding him guilty of a capital crime; you but pronounce his case to be within the law, and it is therefore, those who declare the law, and not you, who deprive him of life" (Eakin v. Raub, 12 Sergeant & Raule [Pa., 1825]). The problem with this argument is that he wishes to give the right of checking the legislature's actions to the legislature. That would be like telling a three-year-old to determine whether his actions were right or not without giving him guidance to determine that.

Another argument is that no other country allows for a Supreme Court to have the be all and end all of judicial power for their country. In response, ponder that while no other government in the world has a Supreme Court with as much power as the United States, no other country has the same kind of government either. To compare on such a level would be like apples and oranges.

Ultimately the process of judicial review is necessary to the functions of the United States government as a whole. Without it the Legislature would have overrun the meanings of the Constitution a long time ago with frivolous laws. Therefore, the process should continue, in spite of its flaws. Besides, no one is perfect.

Works Cited

Brown v. Board of Education, 347 U.S. 483 (1954).

Dredd Scott v. Sandford, (1857).

Eakin v. Raub, 12 Sergeant & Raule (Pa. 1825). N.d. 28 Nov 2005.

"Judicial." Merriam-Webster's Dictionary of Law. 1996

"Judicial Review." Wikipedia Online Encyclopedia. 30 Nov 2005. 1 Dec 2005.

Marbury v. Madison, 5 U.S. 137 (1803). Findlaw. N.d. 28 Nov 2005.

Mount, Steve. The U.S. Constitution Online. "Constitutional Topic: Checks and Balances." 1 Nov 2003. 28 Nov 2005.

"Supreme Court." Merriam-Webster's Dictionary of Law. 1996