Does The Supreme Court Have Too Much Power?

This nation was founded with three branches of Government: executive, legislative, and judicial. It was designed that way so checks and balances were in place with the division of power across three separate entities.

Julianna Truesdale

As they advocated for the adoption of the Constitution to supplant the Articles of Confederation, Alexander Hamilton and James Madison described the judicial branch as far less to be feared than the legislative or executive branches. Without the power of the purse or military might, the Supreme Court could depend only on the people’s willingness to abide by its rulings. The “least dangerous branch,” however, has grown in power and importance over the course of American history, with many now believing it to be far more powerful than a polarized and paralyzed Congress or even the presidency.

The Supreme Court of the United States: Too Much Power?

The Supreme Court of the United States (SCOTUS) stands as a pillar of the American legal system, entrusted with interpreting the Constitution and resolving disputes of national significance. However, there is an ongoing debate over whether the Supreme Court wields too much power, overshadowing the democratic institutions meant to represent the will of the people, which include the legislative and executive branches with elected officials. This article delves into the arguments surrounding the perceived overreach of SCOTUS and its implications for the balance of power in American governance.

The taking of power can be traced back to 1962 when in its decision in Baker v. Carr, the SCOTUS ordered Tennessee to reapportion its state legislative districts favoring rural over urban voters; that SCOTUS declared itself the “ultimate constitutional interpreter.” In Baker, the Court also eviscerated the political question doctrine — the idea that the Court should stay out of inherently political disputes better decided by elected officials, not unelected judges.

Once it seized the power from the legislative and executive branches to have the final say over the Constitution, the Supreme Court would not give it back. Liberal and conservative justices invoked the 1803 Marbury v Madison’s “say what the law is” line to justify a whole host of decisions weakening the other branches. That line is as follows: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

The other branches and the public, moreover, have to come to accept the idea that nine unelected and unaccountable justices should have the last word on the Constitution.

Unelected Judges with Lifetime Tenure

One of the most contentious aspects of the Supreme Court is that its justices are not elected but appointed, often for life. This arrangement, established to insulate the judiciary from political pressures, can lead to a lack of accountability. Critics argue that lifetime appointments grant justices excessive influence, allowing them to shape national policy for decades without recourse from the public. For instance, a landmark decision like overturning Roe v. Wade had far-reaching implications, yet the justices who made these rulings were not directly answerable to voters.

We have the most powerful Supreme Court in the world. The justices have the last word on constitutional interpretation, and they face strikingly little accountability. Because appointments to the Court depend on the happenstance of when a justice dies or chooses to retire rather than a regular process, the nine justices wield extraordinary power for decades.

The U.S. Supreme Court stands alone among high courts in the universe of constitutional democracies in lacking either term limits or a mandatory retirement age. In fact, it stands virtually alone in our own country: 31 states and the District of Columbia have some form of mandatory retirement and almost all states establish terms for high court justices ranging from 6 to 14 years.

There is no question that the U.S. Supreme Court must have term limits, a mandatory retirement age, or both. The only question is how to accomplish it.

The Case for Judicial Restraint

Proponents of reform advocate for measures like term limits for justices, mandatory retirement ages, or a more transparent appointment process to curb the Court’s power. Others suggest expanding the Court to dilute the influence of individual justices. Such reforms aim to strike a balance between judicial independence and accountability, ensuring that the Court does not overshadow the democratic process.

Recent versions of Supreme Court reform call for justices to take “senior status” after 18 years of active service. Under this proposal, justices would serve in an active capacity for that time period, after which they would assume senior status. Senior justices would not leave judicial service entirely, but rather take on new duties, such as deciding original jurisdiction cases, hearing cases on circuit courts as needed, or filling in for recused justices.

The proposal is structured to avoid a constitutional issue. Article III of the Constitution provides for judicial tenure during “good behavior,” which has been understood to mean life tenure. Term limit proposals avoid the constitutional problem by requiring that a justice not leave judicial service entirely, but rather take on new duties. Ninety years ago, the Supreme Court deemed the senior judge model constitutional, declaring that Congress can lighten judicial duties so long as it neither abolishes a judge’s office nor reduces his or her salary. Just as senior judges remain Article III judges, so too would senior justices.

This system is already in effect for the lower federal courts. A federal statute provides two options for federal judges approaching retirement, including Supreme Court justices who meet the requirement. A judge may choose to retire from the office entirely (as I have done), at which point they no longer hold the office of federal judge or justice but continue to be paid an annuity equal to their salary at the time of their retirement. Or they may retain the office but retire from regular active service, receive the same salary, and participate in judicial duties to the extent they choose. In many jurisdictions, he or she could keep the same office and have the same number of clerks.

Term limits weren’t necessary when the Constitution came into being. Life expectancies were nowhere near where they are now. Up until the late 1960s, the average term for Supreme Court justices was 15 years. By contrast the average tenure of justices who have left the court since 1970 has been roughly 26 years, and for some, three or more decades. Term limits are a change whose time has come.

Judicial Review and Legislative Oversight

Through the power of judicial review, the Supreme Court can strike down laws passed by Congress or state legislatures if deemed unconstitutional. While judicial review is essential for maintaining constitutional integrity, critics argue that it allows nine unelected individuals to override the majority’s will.

Partisan Influence and Ideological Polarization

Although the judiciary is meant to be impartial, the appointment process has become increasingly politicized, with justices often viewed through the lens of partisan affiliation. Presidents strategically nominate judges whose ideological leanings align with their own, leading to perceptions of a “conservative” or “liberal” Court. This politicization erodes public trust in the judiciary, as decisions on contentious issues like voting rights, healthcare, and affirmative action are seen as advancing political agendas rather than adhering to neutral legal principles.

Supreme Court appointments are currently political by design. The president appoints, and the Senate, made up of sophisticated politicians, confirms, so there is politics on the front end. And oddly, the primary constitutional way we want to give the justices independence, life tenure, actually injects politics on the back end, because they make strategic decisions about when to retire so that they can be replaced by someone ideologically similar.

What is happening now is more pronounced and complicated by the polarization of the political parties, which made it easier and also more important to appoint justices whose views align more closely with the view of a political party.

Lack of Checks and Balances

While the Constitution provides checks and balances among the three branches of government, the Supreme Court’s power often seems unchecked. Congress has very limited tools to counter Supreme Court rulings, and the amendment process is too cumbersome to address judicial overreach effectively. This dynamic creates a perception that the Court operates above other branches, exerting disproportionate influence on public policy.

The Supreme Court’s role as the guardian of constitutional principles is indispensable, yet its concentration of power raises valid concerns. While it serves as a crucial check on legislative and executive overreach, its potential to override the majority’s will and its susceptibility to politicization challenge the democratic ideals it seeks to uphold.

On December 9, Senators Joe Manchin (I-WV) and Peter Welch (D-VT) proposed a resolution that would amend the U.S. Constitution to limit Supreme Court justices to 18-year terms.

Both senators cited declining public confidence in the Supreme Court as a reason for this resolution. “The current lifetime appointment structure is broken and fuels polarizing confirmation battles and political posturing that has eroded public confidence in the highest court in our land,” said Manchin. Welch said the measure is an effort “to restore public trust in our nation’s most powerful court.”

The proposed amendment would maintain the lifetime appointments of sitting justices while establishing a transition period during which a new justice would be appointed every two years, regardless of when a current justice retires. The total number of justices would remain at nine.

It’s difficult to predict the likelihood that this resolution, characterized by some as a “long shot,” will be implemented. Significant Supreme Court reforms typically do not happen absent a crisis. Nevertheless, this proposal has broad support from the public, former federal judges, and legal scholars, signaling a growing desire for Supreme Court reform.

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