Does the Design of the Supreme Court Put Our Democracy at Risk?

Chapter 14 in The Struggle for Democracy investigates whether or not the Supreme Court enhances American democracy. The framers designed the Supreme Court as an institution that would serve as a check on the other branches, particularly on Congress, which is the only semi-democratic institution in its design. The way the Supreme Court is set up and how it operates calls American democracy into question for a variety of reasons. First, the Supreme Court is structured to be the least democratic of the branches in the federal government because justices are appointed rather than elected, and serve for life instead of for a fixed term of office. Second, the Supreme Court has the power to override the decisions of presidents, Congress, and state legislatures, and make binding decisions for the nation as a whole. Third, Supreme Court justices never face the judgment of the voters. Lastly, a point the book doesn’t emphasize, is that the country’s campaign finance system needs significant changes. Overall, the way the Supreme Court currently operates does not protect democracy or individual rights and liberties and changes need to be made to ensure American democracy is healthy and representative of the population.

Who sits on the US Supreme Court matters to the health of our democracy. The Supreme Court is the ultimate power over and line of defense against the executive and legislative branches. Though the book outlines ways the Supreme Court has played a key role in protecting and expanding our democracy, the Campaign Legal Center explains that, “In the past two decades, we have seen the Court chip away at campaign finance and voting rights laws that are meant to preserve the right of every citizen to participate in our government.” The article goes on to explain that we can not leave the rules of our democracy to the wealthy and privileged elected officials. Instead, we must voice our public opinion to encourage the president to nominate a justice who understands that every eligible voter should be able to participate freely and have an equal say in our democracy. In the 2013 Shelby County v. Holder case, the “court dismantled a key provision of the VRA that allowed the Department of Justice or a three-judge federal court in DC to block discriminatory policies before they went into effect. Without the full protections of the VRA, we have seen an increase in state and local laws – from polling closures to strict voter ID laws to registration restrictions…” (Campaign Legal Center). For our most vulnerable populations, these changes make it much harder to vote, and this is an issue because the United States has a much lower voter turnout than other countries.

Furthermore, as we talked about in Chapter 10 about Participation, one of the causes of low voter turnout is because of the lack of party mobilization. Political parties do not want everybody to vote, they want their supporters to vote, so they keep certain citizens from voting and certain candidates off the ballot by changing Voter ID laws. The actual statistics on voting in presidential elections show that the participation shrinks from presidential elections, to midterm, to local elections. As participation shrinks, the disproportionately of voter demographics increases as voters become people with higher income and higher education. If those people have certain preferences, that’s who the government is going to listen to. Currently, there are no limits on the country’s campaign finance system, allowing wealthy elites to gain momentum and power through donations. Thus, the Court must discontinue the current path of changing Voter ID laws as in recent years and fill the seat with a justice who will protect voter rights and ultimately protect our democracy.

Initially, democracy was a right only white, property-owning males had – they were the only people who could vote or run for election, leaving the nation to be run by, and for, the few. This Truth-Out article explains that “Throughout history, people in the United States have worked together to fight for a true democracy – the participation and representation of all people in the political system.” However, not everyone has equal access to democracy. The Citizens United case allows people, corporations, and unions to donate unlimited amounts of money in politics, which limits our ability to provide equal representation and gives the elite, wealthy few more say in the political system than ordinary Americans. Ultimately, this prevents anyone not wealthy enough to compete in money-based politics from having full access to democracy in the US.

A NYTimes poll reveals that the public thinks the country’s campaign finance system needs significant changes.

The polls show that an overwhelming amount of Americans feel there should be a limit on the amount of money that can be contributed to political campaigns. In the last question, the results show that 85% of the population believe those candidates that use unjust methods to ensure they are elected will help only the people who donated to their campaigns through public policies. This relates back to the idea of participation and low voter turnout because of party mobilization. If candidates are changing Voter ID laws through the Supreme Court to restrict certain citizens from voting, the majority of the population is likely not represented, meaning our popular sovereignty is being violated, and our country does not have a healthy, representative democracy.

Ultimately, it’s time for there to be changes made to the Supreme Court. First, there shouldn’t just be wealthy people controlling it – we need more representation since that is what our country’s democracy is founded on and our nation is moving towards more diversity. Second, there needs to be a change to the country’s campaign finance system to ensure all citizens are able to run for office. Lastly, Supreme Court justices should serve for a fixed term and have a mandatory retirement age instead of serving their whole life. This Washington Post article suggests one way the term could be fixed: “Norm Ornstein likes the idea of an 18-year term limit, saying it would ‘lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.’” As the book explains, if federal judges are isolated from popular influence, democracy is at risk. Thus, if a federal judge is old, with outdated beliefs and has had limited adjustment to new practices and technological advances, the Supreme Court may not make the most thoughtful, beneficial decisions. Thus, there should be a change to the term of federal judges.

These are just a few of the ways the Supreme Court needs to be changed to promote a healthy, representative democracy. Do you agree that changes should be made to the Supreme Court? Are there other changes you think are more important than the ones I proposed?

4 Responses to "Does the Design of the Supreme Court Put Our Democracy at Risk?"

Isabella Brown says:

April 22, 2018 at 10:03 pm

Virginia,

I enjoyed your post on the problems facing our judicial system. I agree with all of your points. I think that money is one of the main telling indicators of how well someone will do in politics. The amount of money a person has basically indicates what circles they run in and who they connections with, which all adds to their probability of how well they will do in politics. I agree that this has created an elitist society running our government. The majority of Americans are not millionaires, so it does not make sense that their representatives whom are making decisions on behalf of the citizens are. I also agree that judge terms should be limited because it would create more pressure for the judge to be held accountable to the wishes of the public, and not their own agenda. I believe that an additional reform that would be helpful would be to improve the efficiency of the judicial system. A recent article I read stated that “Family courts in New York are a Dickensian madhouse, taking years to resolve important personal decisions such as child custody or foster care.” As a country, we need to improve the speed at which our judicial system functions as well as increase the number of judges so that people are not left waiting years for a chance to get through our current slow and outdated justice system. Hopefully the government will be responsible to these reforms and implement them to improve the judicial system’s serving of our democracy.

https://www.theatlantic.com/national/archive/2012/06/judges-the-problem-and-solution-to-americas-judiciary-mess/258131/
Sophia Harrison says:

April 25, 2018 at 12:36 pm

Virginia,
Thank you for your post! I agree that there are flaws within the supreme court, especially when it comes to leaving the power in the hands of the wealthy and privileged. In 2017, President Trump nominated Judge Neil Gorsuch, a millionaire backed by millions of special interest dollars, to the U.S. Supreme Court. This further entrenched big-money politics as the law of the land and threatened our democracy. Gorsuch’s beliefs about money in politics can be assumed through his separate concurring opinion in a 2014 case called Riddle v. Hickenlooper. In a seat in the Colorado House of Representatives, there were two major party candidates who were capped at $400 while the limit for the write in candidate was $200. The write in candidate sued, claiming that the lower cap was a violation of contributor’s rights. A three-judge Tenth Circuit panel reversed the initial ruling from the lower court, finding that the disparities in contribution limits were in violation of the equal protection provision. In Gorsuch’s concurring opinion, there are a few statements that would make campaign finance reformers pause. He wrote, “no one before us disputes that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’”. He added, “the plaintiffs before us don’t complain that Colorado’s contribution limits violate their First Amendment rights because, say, the limits are too low for everyone.” These statements are making it seem like contributions are too low for everyone, which would demonstrate hostility to one of the basic pillars of campaign finance reform: modest contribution limits. It seems that he is open to a higher level of constitutional protection to a donor’s right to make political contributions. Applying this rigid “strict scrutiny” review would likely allow the Court to declare campaign contribution limits unconstitutional, and therefore allow the wealthy to donate unlimited sums directly to our representatives.
Santiago Rivas says:

April 27, 2018 at 12:19 am

Virginia,
Very interesting post, I find that there are a lot of similarities with the problems that you outline for the Supreme Court of the US, with the problems that I have experienced first hand with the Guatemalan supreme court. However, in the Guatemalan case, I have found that the supreme court oversteps its boundaries by ruling on many of the cases similar to those you mention in your post. In Guatemala, I have seen a type of gridlock in policy, uncommon to be seen around the world, because of this notion that the supreme court ruling on instances that do not work to the convenience. The Guatemalan supreme court, just as the United States, is filled with justices appointed by the executive, and in the Guatemalan case, most of these justices are medium to high-income citizens with strong political agendas. Just in the past year they have vetoed and overruled 4 important decisions made by the president of the country and the Congress of the Republic, causing a halt in the creation of policy. Additionally, they have accused the president of committing crimes related to the use of additional funds for the campaign than those that were allowed by Congress. the main problem with this accusation, is that besides not having substantial proof and delegitimizing the president in the eyes of the Guatemalan people, past presidents (who have been guilty of this same crime and provided substantial proof) have not been prosecuted by the court system. Overall the court system seems to be flawed all across the board for both our countries, and your post allowed me to draw these parallels.
Sara Milano says:

April 27, 2018 at 10:53 pm

Virginia,

I really enjoyed reading your post, which debate the merits and disadvantages of the Supreme Court for our democracy. Overall, the results are definitely mixed but I would disagree with your conclusion that the SCOTUS as an institution is bad for democracy. Rather, the Supreme Court is only as good as the justices appointed to serve on it, which are a reflection of the incumbent president. While originalist judges may ensure that change is gradual and the constitution is upheld (as the framers intended) judges who support a living constitution will protect minority rights in a majority system and adapt to changing values and needs. The voting rights issues you brought up and the Shelby county case you cited would most likely be resolved if there were a majority of liberal justices. All the dissenting justices come from the liberal bloc of the court, and Justice With Bader Ginsburg has cited the Citizens United case as the Supreme Court’s worst ruling. I agree that justices who do not represent what the majority of people want are a threat to our democracy, and due to their being appointed for a lifetime rather than being elected for a term, this threat increases. The 18 year term limit is an interesting idea. This may allow older justices with outdated views to be replaced by some who more accurately reflect present values. However, with Donald Trump’s appointment of Neil Gorsuch and his taking the “nuclear option,” justices now only require a simple majority to be appointed, and thus are more likely to be extreme in their ideologies rather than moderate. I think the overturning of this policy is the first step to ensuring justices are balanced.

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