Guest Commentary: The Supreme Court’s immense power could jeopardize its legitimacy | columns


The first Monday in October is the traditional day the US Supreme Court meets for its new term. Analysts and fortune tellers carefully read the signals and predict the direction the court will take. This year the examination seems to be a bit more intense as the court is picking up several highly explosive cases.

Alexander Hamilton believed that the judiciary was the weakest branch of government. He recognized that the Supreme Court lacked “sword and wallet” and was unable to enforce or implement its own decisions. Rather, it would have to rely on the good offices of the other branches.

As a student at the Supreme Court, I studied how the power and authority of the Court has grown and decreased over the centuries. The modern Supreme Court, which was founded in 1954 on Brown v. Board of Education is one of the most powerful tribunals in the world and in history.

This immense power has arguably made the court a leading player in enforcing politics in the United States. It can also lead to the loss of the legitimacy of the court, which can be defined as the public acceptance of a government, political regime or system of government.


When the founding fathers drafted the US government, Congress was supposed to be the most powerful institution. But the standstill has lost its vitality. Presidents, who have tremendous power in foreign affairs, are often constrained in domestic affairs. The Supreme Court’s boundaries – no army, no administrative enforcers – may be real, but the Supreme Court-led judiciary has become in the view of some of the most powerful branches of government.

One of the Supreme Court’s baits is that a victory can be set in stone as a precedent that can be used for decades.

The US government, states, corporations, unions and interest groups are among the so-called “repeat offenders” who strategically use the courts – including the Supreme Court – to complement their lobbying work and advance their political goals.

An advocacy group like the American Civil Liberties Union could go to the Supreme Court to protect a bookseller’s freedom of expression. The National Association for the Advancement of Colored People, now simply called the NAACP, could challenge state or national laws designed to restrict the right to vote. The US government could prosecute a defendant charged with violating an indecency law. Civil rights activists are known to use the judiciary because Congress, the President, or both failed to respond.

Groups could of course go to the courts because the judiciary is the most appropriate place to defend the rights of unpopular groups or to ensure the protection of the accused. The courts could better protect against the tyranny of the majority. Groups could sue to protect the freedom of Muslims to practice their religion or challenge the support of religious schools for preferring one religion over another.


The public approval of the Supreme Court hovers between 50 and 60% annually, which is much better than that of Congress and usually better than that of the President. But that approval is at its lowest level in decades.

The controversy over the recent nominations, threats to overwhelm the court and rumors that certain precedents are about to be lifted have drawn more attention to the court and threatened its legitimacy. And the ultimate authority of the court rests on its legitimacy. If the court is seen as too political, it will bleed this precious resource to death.

The Supreme Court has almost complete discretion in the cases it hears. It receives 7,000 to 8,000 petitions annually for its attention, and about 85 cases are routinely required for full review.

The court takes cases to resolve disputes between lower courts and because the parties raise important issues. But one really important issue doesn’t make sure the court will review.

Sometimes the court just wants to let a problem develop a little further in the lower courts before dealing with it. The court does not want to be ahead of public opinion. For years the court simply refused to deal with gay rights cases. Sometimes they try to avoid a problem in the hopes that Congress or states might be forced to intervene.

The final decision of the court sets binding precedent for the lower courts and the judges themselves.

The judges have been criticized for using the court to make political decisions.

This is controversial in part because the judges are not elected and have a lifelong tenure. They cannot be voted out.

Critics prefer the court to exercise judicial restraint and put aside the elected branches of government that could be ousted by voters if they oppose their policies. Both sides accuse each other of being activists, which is the worst insult you can put before a judge.

But the willingness of the court to penetrate the political vortex is tacitly welcomed by the other parties, who can evade the difficult questions and then ingratiate themselves with criticism of the court among the voters.


At the start of this Supreme Court tenure, opponents and proponents of reproductive rights predict that the court will set one of its precedents, Roe v. Wade, will override. Of course, this would not be the first time such a prediction has been made.

Anyone analyzing the court must reconcile two competing realities. First, judges are relatively consistent in their decision-making: Conservatives make conservative decisions and Liberals make liberals. Second, the court itself seldom overrides any of its precedents. In addition, despite the division of the court, around a third of cases are usually decided unanimously.

Two decades ago, seven of the then-ruling judges voiced the view that Roe was wrongly ruled, but a majority of that court never voted to put it in the dustbin of history.

On the other hand, if the court breaks precedents – for example, Brown overturned Plessy v Ferguson and ended legal segregation – it will after the time run out. Fifty years is typical and Roe is getting closer to that mark.

Occasionally the court makes a decision that is inconsistent with public opinion and can pay a heavy institutional price. When the Taney Court ruled Dred Scott against Sanford in 1857, claiming that freed enslaved people could not become citizens, and overriding the Missouri Compromise, which balanced the number of free and slave states, the decision weakened the judiciary for decades . When the conservative court gutted parts of the New Deal, President Franklin Roosevelt attacked the court and the court relented.

Overturning Roe would invite criticism and closer examination. It could expose the court as an institution that enacts the law rather than interpreting it.

This article was republished by The Conversation under a Creative Commons license. Read the original comment below

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