That Eminent Tribunal: Hypocrisy, Illegitimacy, & Modern Supremacy of The Supreme Court

Photo of The Contemplation of Justice, a statue that sits at the entrance of the Supreme Court. Photo by Matt Wade.

There are few moments in American politics as harrowing as the Supreme Court’s latest session. With seemingly every passing day, the Court, which currently consists of a supermajority of six conservative justices and a minority of three liberal justices, handed down a new decision, targeting a host of issues including abortion rights, environmental regulations, and the separation of church and state.  A plethora of rights have been and continue to be subject to the whim and will of nine unelected individuals who sit lifelong terms on a bench designed to represent the hallmark of checks and balances and an utmost reverence for the Constitution. Criticizing the Court’s infamous and abhorrent 1857 Dred Scott ruling, President Abraham Lincoln said in his 1861 Inaugural Address that “the candid citizen must confess that if the policy of the government […] is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” These words ring truer than ever as American society wades in the modern age of judicial supremacy and extreme polarization. What was conceived to be apolitical, through appointed justices and lifelong terms, has mutated into a hyper-partisan machine, empowered by these very facets of its own design to fully undermine American democracy.

The Supreme Court’s power of judicial review, which holds that the courts possess the authority to declare acts of the executive and legislative branches unconstitutional, contributes to the system of checks and balances but is also a mechanism for judicial supremacy to take root. Judicial supremacy is the idea that the Court should be the ultimate authoritative interpreter of the Constitution. The construct of judicial supremacy, bulked by the Court’s power of judicial review, places the judiciary above the other two branches of government, disrupting the equilibrium of checks and balances. As the Supreme Court becomes the most dominant player in American politics, the finality of judicial supremacy makes the institution especially powerful.

Judicial supremacy finds its roots in the wake of the Civil War, when opinions about the Court were vastly different than they are today. Back then, a senator’s idea to ask the Court about a constitutional disagreement was called implausible, and congressmen enacted laws in direct opposition to Dred Scott. When the Republican Party lost control of Congress in 1875, the Court invented new doctrines that allowed it to nullify legislation that opposed white business interests. Judicial supremacy slowly became institutional as the Court harnessed its broad power of judicial review to undermine the democratic process, which the Court exercises at an unprecedented level today. In Federalist 78, Alexander Hamilton claimed that the judiciary “will always be the least dangerous branch to the political rights of the Constitution,” for it will stand above politics and act as an obstacle against tyranny. Today, this could not be farther from the truth. In the modern era of American politics, judicial supremacy has transformed the Court into an entirely new political beast.

In the Court’s latest session, the conservative supermajority’s rulings not only disregarded the Court’s founding principles, but also precedents established by the Court. In New York State Rifle & Pistol Association v. Bruen, the Court expanded the Second Amendment by striking down a 110-year-old law that required anyone in New York who wanted to openly carry a handgun to demonstrate “proper cause” or a “special need for self-protection.” Bruen built on the Court’s ruling in District of Columbia v. Heller, in which it found that the Second Amendment protects an individual’s right to keep and bear arms inside their home. This Court, though, went even further than its conservative 2008 counterpart by expanding the scope of the right to protect the possession of firearms in public and overhauling the test courts used to examine gun regulations.

Aside from strengthening gun rights, the Court also took a knife to abortion and reproductive rights in Dobbs v. Jackson Women’s Health Organization, which overruled the 50-year-old constitutional right to an abortion protected by Roe v. Wade and Planned Parenthood v. Casey. Not only is the outcome in Dobbs controversial, but the legal reasoning upon which it rests is also highly concerning because it lays the groundwork for the potential rollback of other fundamental rights, such as the right to same-sex and interracial marriage. If these rights are safe and derive from the same logic as the right to an abortion, according to the dissent in Dobbs, then why were Roe and Casey overruled, if not for furthering a partisan agenda?

Despite adopting strict originalist readings in Bruen and Dobbs, the Court flexed for the first time the invented “major questions doctrine” in West Virginia v. Environmental Protection Agency to strip the EPA’s ability to move energy towards cleaner methods of production. This doctrine empowers the Court to strike down any executive regulation it deems to be too broad, unless the regulation has explicit congressional authorization. As in Dobbs and Bruen, the Court disregarded precedent, specifically Mistretta v. United States (1989) which established that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Nevertheless, the Court saw fit to abandon this rationale in West Virginia.

Because the Court was constructed to function objectively and impartially, the outcomes of its decisions should be fairly predictable, not poised for a new interpretation based on a future majority’s political agenda or ideology. The late conservative Justice Antonin Scalia wrote that “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.” It is this governing principle that has seemingly disappeared, especially when contextualized within the Court’s latest session.  In the dissent for the Dobbs ruling, the minority justices affirmed that the Court already reviewed the facts of Roe in Casey and found that overruling Roe was not warranted. The key factor in why Roe was eventually overturned in 2022 was not because the facts or the law changed, but rather “because the composition of the Court has changed,” and that “today, the proclivities of individuals rule.”

This politicization of the Court is working to delegitimize the Court, not only through its controversial rulings and their faulty logic but also through the nomination process that funnels highly controversial justices to the bench. Senate confirmation votes have become increasingly partisan, with nominees appointed based not on their merits, but on their judicial ideology. The two most recent justices to join the Court, Ketanji Brown Jackson and Amy Coney Barrett, did so on Senate vote splits of 53-47 and 52-48, respectively, whereas the last two justices to vacate the court, Stephen Breyer and Ruth Bader Ginsburg, were confirmed by votes of 87-9 and 96-3, respectively. The confirmation process’s hyper-partisan evolution is incredibly recent, with Ginsberg and Breyer achieving nearly bipartisan confirmation in 1993 and 1994, respectively. Furthermore, five of the nine active justices were appointed by presidents who lost the popular vote. While these problems are not exclusive to the Supreme Court, they represent how it has evolved to become highly partisan and an obstruction to democracy.

 Like the rest of the American political structure, the Court was not designed with any notion of the modern era of a two-party polarized system. For this reason, the Court has not functioned in the manner in which it was constructed. The very measures taken by the Founding Fathers to insulate the justices from politics have become the same mechanisms empowering the Court’s politicization. For instance, the justices serve lifelong terms, an aspect of their tenure presidents exploit by nominating young judges who will be able to influence the Court decades beyond when the president leaves office. Given the Court’s outsized influence, the stakes of the political nominating game are higher and its dangers even greater. Additionally, the fact that justices are not elected by the people but instead appointed by the president means that partisanship is further entrenched into the bench. What was designed to create an apolitical and insulated court has instead created a political and unaccountable monster of unprecedented proportion.

And with the case Moore v. Harper on the Court’s horizon, it seems as if this trend will only continue into the future. In the next term, the Supreme Court will rule on whether state legislatures have unfettered authority to set the rules for federal elections, free of judicial oversight. A ruling in favor of the “independent state legislature” doctrine, which Justices Alito, Thomas, Gorsuch, and Kavanaugh have all expressed support for, would have vast consequences on the American electoral landscape, as, in theory, state lawmakers could enact stringent laws on voter IDs, eligibility, and much more, further entrenching systemic voting inequalities, enabling gerrymandering, and opening a wide path for Republican congressional domination.  

However, we can do something about the Court’s judicial supremacy and extreme polarization. By amending the measures intended by the Founding Fathers to insulate the Court, these trends can be stopped and the Court can be depoliticized once more. These reforms can include setting term limits for justices, with a popular length being 18 years. Until the 1960s, a justice’s average tenure was around 15 years, whereas today, the average tenure has increased to 26 years. Another measure could be court expansion, which has been utilized throughout American history, as the Court’s required number of justices is not specified in the Constitution but is instead at Congress’ discretion. Adding and removing justices was common practice in the 1800s, with the Court’s size ranging anywhere between five to ten justices. Packing the Court, though, is not a permanent fix, as any party could add or remove justices whenever they would have power. Nor would court packing curb the judiciary’s supremacy to a considerable degree. However, this problem can be resolved with a different reform. Around the world, many countries similar to the United States employ a “dialogic” process in which the judicial and legislative branches converse and interact with one another on legislation. In the dialogic process, if a court deems a law unconstitutional, then that law is sent back to the legislature to be amended in accordance with the court’s ruling. Contrastingly, the American judiciary has the final say over the legitimacy of legislative actions, and a congressional response is not always automatic or even required. 

Whatever the reform(s), it is clear today that the Court needs them, for the judiciary has become illegitimate and hypocritical, an eminent tribunal born from extreme politicization and partisanship that is quickly losing public confidence. Recent polls have revealed that 52 percent of Americans say their “confidence in our democracy is being shaken by this Court.” Moreover, the Court’s decisions do not align with the public’s general opinions. Even as the Court loosened gun restrictions in the latest term, 68 percent of voters backed stricter gun laws. The same is true for abortion. 61 percent of American adults say that abortion should be legal in all or most cases, a statistic that stands in opposition to the Court’s overuling of Roe and Casey. 65 percent of American adults also say that the federal government is doing too little to mitigate the effects of climate change, another figure that opposes the Court’s ruling in the EPA case. 

When one branch of government maintains unbalanced control over the others, which the judiciary seemingly does, it is time for the American political system to respond. When the checks and balances upon which the United States was founded have shattered, then it is up to Congress to reinstate them, however possible. To curb the Court is to preserve the democracy enshrined in the same Constitution today’s Supreme Court  claims to hold in deep reverence, yet tramples upon with every subsequent ruling.

Zachary Masone is a staff writer at CPR and a rising junior (CC ‘24), studying political science on the pre-law track.