An overly powerful US Supreme Court has allowed for the growth of Partisanship. Now there is an opportunity for change.
With the death of Ruth Bader Ginsberg, the role of the Supreme court is currently hotly contested. The Court is one of the most powerful bodies in the United States, it has taken on the role of umpire in disputes between; the Legislative and Executive bodies, the two Chambers of the Legislature, and between Federal and State governments. As such, the Court has, in the last 70 years, taken on the role of pressure valve. Whenever there has been a seemingly intractable political dispute the Supreme court has stepped into the debate and handed down a verdict. From abortion, to desegregation, to the rights afforded to prisoners, the Supreme Court has been the body that has seemed to settle these disputes.
The Court is able to do this through the process of Judicial Review, which essentially allows the Court to strike down any legislation it deems to be unconstitutional. Judicial review was established by the supreme court itself in Marbury v Madison 1803, the boundaries of judicial review are poorly defined, predominantly it is assumed that the court can rule upon whatever it chooses to hear. However, as I will argue later, this may need to change.
I argue that the role of pressure valve has created a problem of its own. It has allowed the US democratic system writ large to avoid the pressing problems of partisanship. Each time that Democrats and Republicans have failed to come to an agreement, the Supreme court has settled the issue, this has come at the cost of negating the need for compromise between the parties.
Take abortion as an example, in the landmark decision of Roe v Wade (1973) the Court decided that women had a Constituional Right to have and abortion. This decision was reached on the basis of an interpretation of the 14th Amendment which provides a ‘Right to Privacy’. While I hope we all agree that it is good that women were given the right to an abortion, yet it is simultaneously ludicrous that in a Democratic Republic, the way in which abortion was made legal was by means of interpreting a Constitional amendment which was intended to settle issues surrounding slavery post Civil War emancipation.
Let us imagine for a second that the Supreme Court was unable or unwilling to hear a case concerning abortion. The issue would not simply have gone away, in fact it would have grown becoming a greater and greater electoral issue. At some point one or both parties would have made the rational calculation that opposing Abortion was costing them votes and would have passed legislation legalising abortion. In 2020 79% of Americans believe that abortion should be legal in at least some circumstances (Gallup), yet because the debate was never legitimately settled in congress the debate over abortion rages on.
By acting as an umpire the Supreme Court has negated the need for democratic compromise or conciliation, allowing the parties to pursue ever more partisan positions. With the controversial decision to rush forwards with the replacement of Ruth Bader Ginsberg, the debate over the future role for the supreme court is prescient.
One key solution would be to limit what the court is able to rule upon, as previously mentioned there is some debate over the extent of Judicial Review. The Constitution does lay out some areas over which the court must rule, such as cases involving members of the Government, and cases in which the state is party (although there is debate over what counts as being ‘party’ to a case it certainly doesn’t mean cases in which the state is plaintiff or defendant). However, some legal theorists argue that the scope of the Court could be significantly rained in, Steven Calbresi (2007) advocates for a policy of Jurisdiction stripping, this would entail Congress setting limits to the jurisdiction of the Supreme Court. There is some support for this amongst the legal profession, in 1972 while Chief Justice Warren Burger stated that Congress had the power to limit or prohibit judicial review of Congressional directives.
If the Supreme Court were to have a significantly reduced area of Jurisdiction I argue that there could be two positive outcomes, primarily a decrease in the hyperpartisanship that is presently a danger to all of America’s democratic institutions. Secondarily with reduced scope for judicial activism, the Supreme court may regain some of the legitimacy that many argue that it currently lacks. As ever though, the hope for reform seems slim in America’s hyperpartisan politics.