Dictators in Black Robes? the Supreme Court and American Democracy

Lecture #14

Dictators in Black Robes? The Supreme Court and American Democracy

I. Judicial Review in a Comparative Context

A. Judicial Review

The ability of a court to overturn the acts of other branches or levels of government when it rules their acts unconstitutional

"We are under a Constitution--but the Constitution is what the judges say it is"-- Chief Justice Charles Evan Hughes

B. The Alternative: Parliamentary Supremacy

The Constitution is what Parliament says it is C. The Trend: Judicial review increasingly common, in new democracies, in Europe

II. The Supreme Court and the Four Visions of Democracy

A. Classical/Participatory

Replace judges with juries!

Around the Founding, there was some interest in “jury review” of law

But juries in the United States today usually only resolve questions of fact, not law

B. Plebescitary The Countermajoritarian (or "Counterplebescitary") Difficulty

(See Scalia's dissents in Planned Parenthood and Lawrence, as well as the Balkin and Scalia articles. Isn't it undemocratic for judges to decide whether abortion or sodomy or gay marriage should be legal? What do you suppose O'Connor and Kennedy, who wrote the lead opinions in these cases, would say to Scalia on this point?)

1. Elections common at state level, but

2. Lifetime appointment at federal level for Article III judges "with good behavior"

3. Appointment patterns on federal courts roughly follow election patterns--with a lag (current federal judiciary is mostly Clinton and Bush appointees, some earlier appointees)

4. "The Least Dangerous Branch"

The Court depends on maintaining legitimacy in order to get others to follow its rulings (see O'Brien, O'Connor opinion in Planned Parenthood)

This conversely makes it less effective in creating social change. (See Rosenberg)

5. Most Supreme Court rulings follow national-level public opinion

(makes the Court not so reliable for defending civil liberties and rights at times when they are most under attack-- the Court fails the "Casablanca" test— it’s not tough in the clutch, like Humphrey Bogart in Casablanca)

C. Pluralism

1. Sponsored litigation—many Supreme Court and federal court cases sponsored by interest groups

2. Amicus Curiae—groups participate as "Friend of the Court"

3. Interest group role in enforcement

4. Relatively low barriers to participation--but still expensive for individuals

5. Protects minorities? Groups that can’t get a hearing with other branches?

(See #5 above on the “Casablanca Test”. But perhaps outside of crises, may be more supportive of minority groups than other branches. Recent decisions on "enemy combatants" and gay marriage support this view.)

D. Trusteeship

But no one elected them! (At least in the federal courts)

(Why would we trust them over the people we picked? Why not elect federal judges, like most state judges?)

II. Conclusion

Key Point: Those who claim judicial review and judicial policymaking are “undemocratic” must explain what they mean by “democracy” There are, after all, different ways to think about “democracy,” and depending on the definition, courts may be considered democratic

Also: Are the other branches “democratic”?

(For example, is the process of agency rulemaking democratic? Is the Federal Reserve democratic?)