From its inception, the United States government based its authority on the rule of law as decided by the will of the people. After years of enduring the whims of a distant king, the colonists decided on a government of popular representation with each branch of government answerable to the people, with the exception of the Judiciary. Instead, the president nominates a qualified individual to one of the highest positions in government, who the Legislative Branch then votes on, and if accepted, becomes a Supreme Court Justice. After swearing to protect the constitution, the new S.C. Justice begins a term unfettered by the need to seek the approval of the other government branches or the American people, and unburdened by election campaigns or term limits.
As the highest court in the United States, its members are the gatekeepers tasked with protecting the constitutional rights of every U.S. citizen from the unfair encroachment of the Executive and Legislative branches. The gravitas with which it carries out this task places the Supreme Court beyond reproach. However, has the court proven itself worthy of this power by observing a history of fair judgments untainted by political ideology? Have the justices earned the privilege of serving a lifetime commitment protecting the constitutional rights of American citizens? Is providing this small group of individuals with such far-reaching power good for a democracy?
The popular argument for providing Supreme Court Justices with lifetime appointments is to place them beyond the ideological reach of the party politics forced upon elected officials. However, any objective history about the United States Supreme Court’s impact on American civil liberties provides ample evidence that its members are politically committed to a particular party. It begins with the model case for understanding how the Supreme Court gained the power of absolute authority over the constitutionality of American laws, the 1803 Marbury v. Madison case.
The details of the case revolved around a political battle between the outgoing Federalist presidential administration of John Adams, and Thomas Jefferson, his Democratic-Republican predecessor. Jefferson accused the Adams administration of packing the federal judiciary with last minute appointees and refused to deliver three commissions, one of which belonged to William Marbury. Marbury v. Madison signaled the first of many political battles waged by presidents to select federal judges who fit the prevailing characteristics of the ideological climate. For example, Sandra Day O’Connor described President George Washington’s selections for the Supreme Court as, “reliable supporters of the Federalist cause, had service in the Revolution, were active in the political life of the nominee’s state, and were favorably regarded by the President or other well-known Federalists.”
Adams, too, selected Federalist-affiliated Justices for the court, leading to a showdown between the Jefferson administration and a Federalist-packed Supreme Court. From its very inception the highest court in the nation was shaped by political forces and it became the norm, not an isolated event. Speaking about the contemporary selection process, O’Connor said, “Every President making appointments has tried to appoint people who were politically acceptable to the President himself.” If the President’s search for Justice appointees relies on ideological equivalency, how, then, can its members claim exemption from the political vagaries facing the nation, while asserting a lifetime appointment as the solution?
Examples of the damage caused to Americans by the Supreme Court’s adherence to the prevailing political climate abound in its young history. In 1857 the Supreme Court had an opportunity to correct the injustice of slavery forced onto a large portion of the country’s black population. It was an issue of such importance that in just four years the nation would fight a civil war to overturn the ‘peculiar institution’ of slavery at the cost of an estimated 600k soldiers’ lives. With an opportunity to be on the right side of history, the Supreme Court, instead, ruled in favor of the political tenet in Dred Scott v. Sandford that blacks under the Constitution were a “subordinate and inferior class of beings who had been subjugated by a superior race” with “no rights which the white man was bound to respect.”
In the aftermath of the Civil War and the South’s reconstruction, the Supreme Court received a second opportunity to secure national rights for all Americans in the Slaughterhouse Cases of 1873. It decided on two levels of citizenship, with those laws addressed by state rights gaining precedence over national rights. Some southern states enacted laws requiring separate accommodations for whites from ‘inferior races’ in the public sphere. When the constitutionality of these laws was challenged in the 1896 Plessy v. Ferguson case, the Supreme Court denied that “the enforced separation of the two races stamps the colored race with a badge of inferiority.” Legislation was “powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plain.”
Supreme Court Justices were not immune to the climate of racism that plagued the nation long after the end of the Civil War. In 1914, President Woodrow Wilson appointed James McReynolds, a man with many prejudices, to the Supreme Court. When Louis Brandeis and Benjamin Cardoza, both Jews, joined the Supreme Court, McReynolds refused to sit next to, speak with, and dine with, either man because he was, according to Justice O’Connor, a “notorious racist.” If the Supreme Court lacked the ability to curtail racism within its own ranks, what level of impartiality could black Americans hope for in the early 20th century?
After supporting a national two-tiered social system for 151 years, the Supreme Court finally took a turn toward supporting civil liberties for all Americans. Led by Chief Justice Earl Warren, the court decided against the segregation of black and white schoolchildren in the 1954 Brown v. Board of Education case. Appointed by President Dwight Eisenhower, who later considered Warren “one of the two worst mistakes” of his presidency, Warren believed separating black children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
The Supreme Court finished its pivot toward civil liberties for all Americans in 1967 when President Lyndon Johnson appointed the first black American to the Supreme Court, Thurgood Marshall. The following year, civil rights legislation passed that finally broke down the racial barriers separating white Americans and the rest of the country. When President Ronald Reagan selected Sandra Day O’Connor for the Supreme Court, she brought the promise of a truly diverse Supreme Court with her. However, with such a long, dismal record of adhering to outdated, antiquated, and conservative political ideologies, should Americans continue to trust Supreme Court Justices with the power to shape decades of government policy through lifetime appointments based on the false tenet of political neutrality?
President Thomas Jefferson once predicted that the Constitution would become a “mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” With advances in medicine, S.C. Justices enjoy longer terms in office, and the opportunity to mold government policy for the next three decades. In recent rulings, the Supreme Court continued its support of free speech principles in campaign finance, but its focus moved from that of protecting individual rights to allowing more money to flow into the political process. The media uproar in the wake of the McCutcheon v. FEC included a stern accusation from economist Robert Reich that the decision was “the most brazen invitation to oligarchy in Supreme Court history.” He noted the court overturned “40 years of national policy and 38 years of judicial precedents” to reach its conclusion. Has Jefferson’s prediction come true?
Street with no name 