The judicial branch of our government was established by Article III of the Constitution. Little did the creators of the Constitution realize that as the nation and its laws evolved, this branch of government would become dictatorial in its oversight of the other two branches and subvert the process of democracy.
The Supreme Court and the Federal Appeals Courts judge the nation’s most important legal cases. There are two problems with these courts that conflict with the democratic ideal. Their members are unelected, yet are able to rule on the constitutionality of laws generated by elected members of Congress and state legislatures, as well as rules promulgated by the president and his surrogates in the executive branch. In addition, judges are appointed for life assuming “good behavior.” When the Constitution was written, average life expectancy was below fifty, which meant that most appointees to the bench would serve for a limited number of years. Now, given the increase in life expectancy, an appointee to the court at age fifty could continue as an active judge for thirty to forty years. This means that no matter what decisions a judge writes or supports, he or she will remain active on the bench until death or voluntary retirement.
For decades conservatives had assailed the courts for judicial activism, claiming the courts thwarted the power of elected bodies to legislate, by ruling laws unconstitutional and disregarding precedent. However, since the Supreme Court has tilted to the right, conservative voices are no longer being lifted against recent judicial activism, but praise the Court’s decisions.
A cry against judicial activism came from Southern conservatives when the Warren Supreme Supreme_Court_US_2010Court in a 9-0 landmark decision in 1954, Brown v Board of Education, declared state laws unconstitutional that authorized separate public schools for black and white students. This overturned Plessy v Ferguson which in 1896 had ruled in favor of state supported segregation. Subsequently, in 1973, in Roe v Wade, the Court struck down anti-abortion laws that had been enacted by many states, by a 7-2 margin. Conservatives again saw this as judicial over reaching.
However, since that decision, the Court has ruled a number of times limiting the scope of Roe v Wade with conservative approval. In 1980, it validated the Hyde Amendment, prohibiting federal funds from being used by indigent women for abortions. In Rust v Sullivan in 1991, it upheld regulations that banned abortion counseling and referrals from family planning clinics that received federal funds. In a number of other cases since, it has favored further restrictions on women’s rights to choose abortion.
Other rulings by the Supreme Court have overturned local laws restricting use of guns and upheld laws expanding gun rights. These decisions affirmed the conservative outlook of the Court, with judicial activism evident when legislation developed by elected bodies was ruled invalid. Rulings narrowing the scope of the 1966 Miranda decision about a criminal suspect’s right to remain silent reinforced the Court’s leaning to the right, as did decisions regarding privacy, free speech, and immigration.
However, the major manifestation of the Court’s conservative judicial activism came with its Citizen’s United ruling in 2010 that overturned decades of laws and precedents that had attempted to control campaign spending. Statutes had existed limiting corporate contributions in election campaigns since 1906, the most recent of which was the McCain-Feingold Act passed in 2002. This had been upheld by the Court in a 5-4 decision in 2003 in McConnell v Federal Election Commission. Then Citizens United overrode past precedent to strike down the provisions of McCain-Feingold that limited corporate spending in federal election campaigns, saying it went against the First Amendment that protected freedom of speech. Conservatives had previously argued that judicial activism was only credible when protecting rights that were present in the text of the constitution, or if intent of the framers of the constitution had been evident. These criteria were not met in this bald act of judicial activism by the Court, unleashing Super PACs upon the country.
Since justices will continue to be appointed by the president and confirmed by the Senate without voter input, a way is needed to exert some degree of control over these judges who determine the direction of our democracy. Limiting their terms (perhaps to ten years) and then requiring reappointment or dismissal is one way to have these justices explain their decisions during the confirmation process, allowing the president or the Senate to bring new faces onto the courts if it were deemed necessary. The current judicial process contravenes democracy and must be changed.
Political junkie, Vietnam vet, neurologist- three books on aging and dementia. Book on health care reform in 2009- Shock Therapy for the American Health Care System. Book on the need for a centrist third party- Resurrecting Democracy- A Citizen’s Call for a Centrist Third Party published in 2011. Aging Wisely, published in August 2014 by Rowman and Littlefield. Latest book- The Uninformed Voter published May 2020