A Cold Hard Look at the Supreme Court

The Supreme Court as an Undemocratic Institution

To propose that the Supreme Court undermines American Democracy requires that we define the terms of the resolution. When we refer to the Supreme Court, we are talking about an institution but also a group of 9 individuals that craft opinions which carry significant weight. When we say American Democracy, we are not referring to a pure democracy whereby everyone votes on everything. Instead, we are discussing a unique breed of democracy - a constitutional republic with democratic characteristics. Despite this forgiving definition, an emphasis on the will of the people remains at every level of government, and this will is expressed in majoritarian terms through the elected branches of government: the executive and the legislative.

As an institution, the Supreme Court is fundamentally undemocratic. The Justices on the Court are not elected. According to Article II, Section 2 of the Constitution, “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.” According to Article III, these judges “shall hold their offices during good behavior.” This essentially provides them with life tenure (the only Supreme Court Justice to have been impeached was Associate Justice Samuel Chase in 1805, who after being impeached by the House of Representatives was acquitted by the Senate).

These elements of the Court are accepted because they keep the judges separate from politics. Alexander Hamilton in Federalist 78 called life tenure “an excellent barrier to the encroachments and oppressions of the representative body,” and “the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” In other words, the Justices are very deliberately kept separate from democracy. But let’s say, for the sake of debate, that this is not enough to say the Supreme Court undermines American Democracy. These elements of the Court are explicitly included in the Constitution and seem very well to have been the intention of the Founders. Let’s consider an element that isn’t and, perhaps, wasn’t.

Judicial review is the power for which the Court is best known. Judicial review is exercised when the Court deems a law “unconstitutional.” In exercising this power, the Court is saying that a law passed by Congress contradicts a Constitutional principle and thereby ought to be nullified. When the Court does so (as it has over 176 times since 2014), it is striking down a piece of legislation that was passed by the most democratic branch of government: the legislature. This is a uniquely anti-undemocratic action. To be able to exercise judicial review, the Court is necessarily isolated from the democratic process. But where does judicial review come from?

Maybe surprisingly, judicial review is not mentioned in the Constitution’s astonishingly short Article 3, which articulates the role of the judiciary. Perhaps this is because the Founders did not envision the Court becoming a coequal branch of government. Of course, it is difficult to say what they imagined. Again in Federalist 78, Hamilton foresees the judiciary as “incontestably…the weakest of the three departments of power.” At the same time, he describes judicial review albeit without using the term: “all acts contrary to the manifest tenor of the Constitution” must be declared “void.” Hamilton elaborates: “If there should happen to be an irreconcilable variance between [a law and the Constitution]…the Constitution ought to be preferred to the statute.”

The same notion was reiterated in 1803 by Chief Justice John Marshall in Marbury v. Madison (1803). Marbury was the first time the Court exercised judicial review. For the sake of extraneous (but exciting) detail, that Madison is James Madison. In Marbury, the Court found Section 13 of the Judiciary Act of 1789 in conflict with Article III Section 2 of the Constitution. Marshall’s decision was a political one that allowed him simultaneously to assert the Court and avoid controversy. Marshall wrote in his opinion, “an act of the legislature repugnant to the constitution is void.” It was an absolute stroke of genius, and it elevated the Supreme Court to a level that at least some Founders probably never expected. It is likely that some, however, agreed with Hamilton, and considered judicial review implicit in the role of the judiciary. What is important to remember is that judicial review, the exercise of unelected judges striking down the work product of the legislature, specifically enables the Court to act anti-democratically.  

The anxiety provoked by such an action was termed the “counter-majoritarian difficulty” by Yale Law giant Alexander Bickel, and it is something all judges are concerned with. An almost comical illustration of how universal this anxiety is comes from June 25 and June 26 of 2013. In those two days the Court’s decisions on Shelby County v. Holder (2013) and United States v. Windsor (2013) were released. In Shelby County, the Court struck down an essential provision of the Voting Rights Act of 1965, which I’ll discuss later. In Windsor, it ruled Section 3 of the Defense of Marriage Act unconstitutional. On June 25, Justice Ginsburg decried the lack of judicial restraint in Shelby County. The next day, Justice Scalia opined in his Windsor dissent that the Court’s decision was “an assertion of judicial supremacy over the people’s representatives in Congress and the Executive.” The counter-majoritarian difficulty is not a partisan issue. It is an inescapable aspect of the judiciary. So why does it persist if it so ostensibly contradicts our democratic principles? Because while democratic principles are important, we are a constitutional republic which maintains that certain principles exist in a realm that supersedes man-made law.   

This countermajoritarian authority, like the appointment process and life tenure, just might be necessary for the Court to preserve a system that we’ve taken to calling American Democracy. Indeed, certain flaws of democracy are worth protecting against, even if it means endowing an undemocratic body with undemocratic powers. For example, the “tyranny of the majority” is something John Adams warned about in 1788, Tocqueville in Democracy in America, and Madison just about everywhere, but particularly in Federalist 10. Judicial review represents an important check against this tyranny, and when exercised properly, can ensure the protection of minorities, individual liberties, and civil rights. In short, perhaps we must accept these many undemocratic aspects of the Court because American Democracy is something unique and derived from an understanding that pure democracy has flaws.    

Perhaps it is here that this article adopts a certain argument. It is this writer’s belief that the inherent undemocratic character of the Supreme Court must only be forgiven if it fulfills its obligation to protect minority rights against the tyranny of the majority, keep elections free and fair, and ensure that the doors to a courthouse remain open to all Americans, in all cases regardless of race, sex, gender, or socioeconomic status. In the past several decades, and particularly under the guidance of Chief Justice John Roberts, the Supreme Court has failed in all regards.


Exemplary Decisions that Undermine American Democracy


A few recent cases will illustrate that in doing so, the Supreme Court has undermined any conceivable definition of American democracy. Perhaps the most famous of these is one that has pervaded the 2016 presidential election: Citizens United v. FEC (2010). Here, by a 5-to-4 vote along ideological lines, the majority held that pursuant to the First Amendment corporations are people, they have the right to free speech, and included in this right is the ability to contribute unlimited funds to political campaigns. This decision gave rise to the superPACs that we see today. Citizens United flooded the electoral process with money from corporations and wealthy donors. Since 2010, $1 billion has been contributed by superPACs. If the sheer amount of money doesn’t appall you, consider that 60% of that $1 billion has been contributed by 195 individuals and their spouses.

At the same time that the Supreme Court has made corporations a bigger part of our elections, it has excluded minorities and groups that have historically been discriminated against from the election process. In Shelby County v. Holder (2013), again by a 5-4 vote, the Supreme Court struck down Section 4 of the Voting Rights Act of 1965 (VRA). The VRA was passed by Congress in response to the nearly century-long history of voter discrimination in the United States. The provision that the Court ruled unconstitutional, Section 4, was vital because it ensured the federal government would have oversight when states with a history of discrimination changed election procedures. By doing so, it ignored the undeniable reality that voter discrimination still exists. Chief Justice John Roberts summarized the majority’s thinking about race in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), a case that dealt with a school system’s plan to maintain diversity. Justice Roberts declared that that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The practical effect of decisions like these is that elections are now less free and less fair. Indeed, if you’re upset that people in Arizona had to wait five hours in line to vote just a week ago, you should be upset about Shelby County. If you’re upset about Voter ID laws, and other restrictions that make it harder for minorities to vote, you have the Supreme Court to blame.    

This willingness to undermine the vote of the average American while expanding the power of corporations and political parties encapsulates the Supreme Court today (or at least 5 of its justices). In a case called Vieth v. Jubelirer (2004), the Court addressed an issue called partisan gerrymandering. As Justice Scalia explained in the Court’s opinion, “[partisan gerrymandering] refers to the practice of dividing a geographical area into electoral districts often of highly irregular shape to give one political party an unfair advantage by diluting the opposition’s voting strength.” Gerrymandering has historically been promulgated on a racial basis, but the Court has ruled this practice unconstitutional (Shaw v. Reno (1993), Miller v. Johnson (1995)). However, if this discriminatory redistricting is ostensibly done on a partisan basis, the Court has said that that’s a political question not meant for the courts. This is problematic for several reasons.

First, imagine how likely it is that partisanship corresponds with differences in age, sex, and race. As long as a state legislature justifies their irregular voting districts with a reasoning based on partisanship, however, the Court will not intervene. Furthermore, Vieth has created a system that protects incumbents, thoroughly undermining the spirit of American Democracy. Whatever party has a majority in their state legislature can ensure that members of their party get in power and stay in power. Vieth illustrated that the Court is only willing to interfere with the democratic process when it coincides with its political agenda, not, as it should, in the name of protecting minorities and our electoral process. Combined with Citizens United and Shelby County, Vieth showed America that the Supreme Court has no regard for the ongoing challenges of minorities and is only concerned with protecting the political elite and party machines. It has created a system whereby instead of voters choosing their representatives, representatives choose their voters.

Finally, I’d like to address a case that represents perhaps the most egregious infringement on the democratic process in American history: Bush v. Gore (2000). Here, once more by a 5-4 vote along partisan lines, Bush v. Gore shut down the recounting of ballots in Florida during the presidential competition between George W. Bush and Al Gore. By overruling Florida’s Supreme Court, which had ordered a recount, it violated several traditions of jurisprudence and undermined our American notion of Federalism. What happened in Bush v. Gore (2000)? 5 lawyers behind closed doors ordered that democracy stop. They delivered Florida’s 25 electoral votes, and thereby the entire election, to George W. Bush. If there were ever a time the Court undermined the most fundamental instrument of democracy, our vote, it was in 2000 in Bush v. Gore.

The point of highlighting these cases is to show that through a series of 5-4 decisions decided along partisan lines, the Court has reshaped our elections so that corporations and superPACs are stronger, incumbents are safer, and minorities are weaker. Quite simply, the Supreme Court neither speaks for Americans nor reliably protects Americans.


How the Court has Undermined Civil Procedure and Access to the Courts


The extent to which the Supreme Court has undermined American Democracy does not end at the ballot box though. In recent years, the Roberts Court has made it more and more difficult for average citizens merely to get through the doors of a courthouse. This is particularly significant because the judiciary represents an important element of American Democracy. We respect the Court as an institution because historically, when individuals have had their rights violated by their government, employer, school, a company, or some other institution, they have had the courts to turn to. However, through a series of decisions and changes to rules of procedure by the Roberts Court, American courts are becoming a place only for corporations and those that can afford outrageously expensive legal protection. Indeed, the institution we hail as a beacon for social advancement and a lighthouse for minorities seeking to air their grievances is on its way towards being neither.

Two cases in particular, Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), have created a substantial burden for plaintiffs trying to get their cases heard. With these cases, referred to in the legal community as “Twiqbal,” the Supreme Court upended the traditional standard for what must be included in a complaint for it to be accepted by a court and added to a docket. Previously, the Court followed the long established principle of “notice pleading,” meaning “a complaint [must] only contain a short and plain statement of the cause of action,” and need not make the case. This allowed for plaintiffs with “reasonable, but imperfect, case[s] to first file a complaint, put the other side on notice of the lawsuit, and then strengthen the case by compelling the defendant to produce evidence during the discovery phase.” The decisions in Twiqbal abandoned this standard in place of one that requires plaintiff to establish “plausibility” before even being able to gather information in the discovery process (wherein plaintiffs can conduct interrogations, request information, perform depositions, etc.) Essentially, plaintiffs must now make their case without having the chance to build their case. These two Supreme Court decisions have led to the dismissal of hundreds of lawsuits at the federal level and placed a significant obstacle in the way of average Americans trying to get their day in court.

That aforementioned discovery process on which plaintiffs so rely and that distinguishes American courts from others around the world has been further limited by a set of procedural rules promulgated and praised by Chief Justice John Roberts. The Federal Rules of Civil Procedure, which governs how cases proceed in the federal judiciary, are developed by the Supreme Court pursuant to the Rules Enabling Act of 1934. This act gives the Supreme Court the authority to make the rules that all lawyers must abide by. According to new rules of procedure developed under Chief Justice Roberts, even when a case is adopted and discovery (the court-ordered pretrial fact-finding process) has begun, this discovery process will be limited to “materials that are ‘proportional to the needs of the case.’”

These changes drastically limit plaintiffs’ abilities to build their cases, and they have been met with criticism by countless leading scholars in the field. In particular, NYU’s Arthur Miller, a legend in the field of civil procedure, condemned the new rules as “a provision will be used to restrict a citizen’s access to the information that often is critical to establishing a grievance, whether it be a civil rights claim or an economic or personal injury claim.” Stephen B. Burbank of the University of Pennsylvania law school called these decisions “a blank check for judges to get rid of cases they disfavor.” Twombly, Iqbal, and these new rules disproportionately burden lone plaintiffs and individuals making claims against corporations and large organizations, which are now making use of the lazy defense that plaintiffs’ claims are frivolous or insufficiently founded in fact. As a result of changes and decisions by the Supreme Court, a growing number of cases are being dismissed on such grounds, and even those plaintiffs that do make it to the courts have their hands tied when it comes to building their cases.

We can see how the Supreme Court has restricted average Americans’ access to the courts at other stages of the legal process as well. We have already seen in a case like Citizens United how the Court has enhanced the de jure and de facto power of corporations. The Court has continued to do so by maintaining what are called arbitration clauses. These clauses, very often included in the contracts of health insurance, credit card, and technology companies, eliminate consumers’ abilities to litigate their claims. Arbitration clauses are contracts that consumers have to agree to simply as a result of purchasing or using a product. It renders plaintiffs defenseless and makes arbitration their only option.

The Consumer Financial Protection Bureau has been aware of arbitration clauses’ effects on consumers for some time, and just recently Director Richard Cordray gave a speech at the American Constitution Society indicating that “CFPB rulemaking that will likely greatly restrict the use of arbitration provisions” is coming in the near future. Cordray’s speech arose from a study that concluded: arbitration clauses “restrict consumers’ relief for disputes with financial service providers by allowing companies to block group lawsuits;” often include a prohibition against class actions; and that “more than 75 percent of consumers in the credit card market did not know if they had agreed to arbitration in their credit card contract.” The CFPB’s movement on this issue is refreshing and offers the hope that such rulemaking might make its way into industries beyond finance. Otherwise, arbitration clauses will remain another way that the courthouse doors stay closed for ordinary Americans in need of legal protections and remedies.

It is worth highlighting that arbitration clauses tend to prohibit class actions because the Supreme Court has been actively doing the same. Class actions, a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or “class," are becoming increasingly difficult. In particular, the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes (2011) shifted the balance in favor of employers and corporations when it comes to class action suits. In this case, Betty Dukes, the lead plaintiff, alleged that she had been discriminated against, not receiving the same wages or opportunities and training for advancement. The Court dismissed her case which, by the time it got to the Supreme Court, included over a million women that shared Dukes’ complaint. It was dismissed on the grounds that the members of the class action did not have enough in common. By doing so, Dukes made it significantly harder for a group of similar plaintiffs to form a large class. This is especially problematic in a time when unions are increasingly threatened (look no further than this term’s case Friedrichs v. California Teachers Association (2016), which would have almost certainly eviscerated public-sector unions but for the untimely death of Justice Scalia). Class actions, of course, are far less discussed than Citizens United, voting restrictions, and redistricting, but that makes them no less important. They represent a necessary legal avenue for individuals, particularly in cases where large groups of employees have suffered some harm at the hands of their employers.


Quite simply, this is not how a thriving democracy should look. It is not even how a constitutional republic with democratic characteristics should look. Even when we offer a forgiving definition of “democracy” and accept the undemocratic elements of the Supreme Court as necessary, we can see the Court has failed to exercise its power effectively. Today, because of the Court’s decisions and rules, we are left with an electoral process that is more about dollars than ballots. SuperPACs, corporations, and political parties make sure that politicians they like get in power and stay in power. Additionally, minorities are increasingly being excluded from the election process and from the courts.

If the Court is going to be allowed such undemocratic authority, it must use it to protect minorities, preserve fair elections, and keep the courts open to everyone. The Court has overwhelming failed, and in doing so, has undermined our American democracy.

Many thanks to Dean Trevor Morrison for his participation in the debate and generous guidance on this issue. Thank you to Professor Daniel Guttman for his knowledge on civil procedure and Professor Peter Rajsingh for his teaching on the American Constitution.