The Supreme Court has long been an institution that enjoys a high approval rating among American citizens. It tends to be regarded as the most trusted branch of United States government, one that does not allow the overwhelming influence of party politics to persuade its influence the way it does on Capitol Hill or in the White House. However, in the latter half of the last century, the Court has begun to generate a more politicized presence than years past. Since deciding Brown v. Board of Education in 1956, the Court has weighed in on other heavily politicized issues, including abortion (Roe v. Wade), marriage equality (United States v. Windsor, Hollingsworth v. Perry), gun rights (District of Columbia v. Heller), voting rights (Shelby County v. Holder) and even deciding a presidential election (Bush v. Gore). Given that the last four cases were heard in the just the past fourteen years, one has to recognize that the Court has become more activist. Now more than ever, the Supreme Court has displayed its willingness to take on issues still being decided in the court of public opinion. As recently as November, it heard a case with serious foreign policy implications regarding the Israel-Palestine conflict. Furthermore, news that the Court will hear another serious challenge to the Affordable Care Act has some calling these legal motions a power play. One has to wonder if the Court has become politicized beyond the point of an appellate judiciary, morphing into an institution in which nine individuals’ political perspectives have become more relevant to the lives of American citizens than ever. If this is true, the Supreme Court is in grave danger.
The danger presents itself in what would be diminished support for the Supreme Court by American citizens. The Court has long been regarded as an institution with integrity and an eye for justice instead of politics. It is for this reason that the Court has been able to maintain many traditions that some would argue are outdated, like banning cameras from recording its sessions and lifetime appointments that have no input from the American electorate. As the Court continues to move in an activist direction, its justices should be aware of the possibility that the high approval ratings they have spent years benefitting from may begin to fall, and with them will fall the traditions that define the Supreme Court to its very core.
To understand any interpretation of the Supreme Court as an increasingly activist institution, one must (unsurprisingly) examine its history. Any above-average student of American history can recite to you a few of the Court’s most important decisions: Marbury v. Madison in 1803, Plessy v. Ferguson in 1896, Brown v. Board in 1954, Gideon v. Wainwright in 1963 and Roe v. Wade in 1973. There are a plethora of other cases in the Court’s history that have dramatically affected the function of law in the lives of U.S. citizens, and others still that have immensely altered the way the U.S. government works. The reason I point out the specific cases above is to highlight ones that stick with most Americans. It’s important to make note of the years of separation between these influential cases. Between Marbury and Plessy, there is a ninety-three year gap. It wasn’t until thirteen years after Brown v. Board that the Court finally decided bans on interracial marriage were illegal in Loving v. Virginia. The other dramatic cases in the Court’s history are separated by almost a decade each. These gaps in time addressing similar issues point to a far more restrained Supreme Court. They highlight the fact that the Court often waited years to weigh in on topics that invoked any sort of politicized public debate.
Why is this important? For the last five or six years, the Court has made headlines each June for new “landmark” cases it has decided on. Last June, in a 5-4 decision, the Court struck down a legal mandate for female contraceptive care in Burwell v. Hobby Lobby, much to the dismay of large portions of the American public. The year before that, the Court gutted the Voting Rights Act in Shelby County v. Holder, upheld laws banning Affirmative Action in college admissions in Schuette v. Coalition to Defend Affirmative Action, and ruled in favor of gay marriage proponents in Hollingsworth v. Perry and United States v. Windsor – and this was in June alone. In 2010, the Court ruled in Citizens United v. Federal Election Commission that corporations were entitled to First Amendment rights, effectively saying that monetary donations were equal to free speech. Two years earlier, they struck down laws restricting the ability to carry handguns in public in District of Columbia v. Heller. And let’s not forget the all-important case of Bush v. Gore, heard in December 2000, in which the Court stalled the process of the Florida Recount past its deadline, then decided that although legally the recount should be pursued, it could not be, as the deadline had passed, thus effectively handing George W. Bush the presidency. Although we now know President Bush probably would have won Florida with or without the recount, it is obvious the Court has been busy weighing in on hotly contested issues – health care, gay marriage, voting rights, gun rights, affirmative action, and campaign finance – over the last fifteen years.
This dramatic shift may alarm some Americans, and it should. The Court’s primary purpose is to decide any case that relates to Constitutional legislation or any “Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made.” That being said, its members are not publicly elected, but rather appointed for the rest of their lives or until retirement. From its very onset, the Court has certainly capitalized on its own influence. It basically generated the significant powers it has held until today in its own decision in Marbury v. Madison during the fledgling years of American government, granting itself the tool of judicial review. This tool could be implemented to review laws passed by the states, the Congress or the President to determine their constitutionality. Despite the potency of such a mechanism, the Court typically showed restraint in involving itself with matters of divisive domestic public policy, and rarely ever took cases that somehow involved foreign policy. The Supreme Court of the 21st century has departed far from the ones we have seen in the past, single-handedly choosing a president and determining which types of medical care can be considered “compelling interests.”
As I scrutinize this departure from a Supreme Court as objective analyst of constitutional appellate law to a
Supreme Court as a powerful voice of American political policies still being developed, I am reminded heavily of the Court’s decision in Burwell v. Hobby Lobby this Summer. It is generally agreed upon that the Court should have considerable influence on American politics, but should certainly not decide issues based upon political merits. The Hobby Lobby decision was a particularly embarrassing display of party politics at the Court. The majority’s opinion supporting a corporation’s right to religious protection under laws like the Religious Freedom Restoration Act (RFRA) goes beyond the scope of Congressional intention. The entire argument against contraceptive care requires a predisposed view of contraceptive medicines as “controversial.” There is no legal basis in this perspective, and aside from the politicized nature of debate over contraceptives (which many would argue is sexist in and of itself), contraceptive medicines provide a myriad of health benefits to women of all ages, especially young women. The weakest aspect of Hobby Lobby’s case came when Justices Sotomayor and Kagan offered a viable alternative – that Hobby Lobby could just not provide any health care and instead pay the $2,000-per employee tax to get in on the Obamacare exchange (which was actually less than what Hobby Lobby was paying at the time for its employee’s health care coverage) – and the lawyer for Hobby Lobby and Chief Justice Roberts responded that Hobby Lobby’s religious beliefs “mandate that they provide health coverage” for their employees. For purposes of clarification, Hobby Lobby objected to being forced to provide a certain type of health care coverage mandated by the law because of its religious beliefs, but also objected to allowing its employees to get in on another type of health care exchange because of its religious beliefs. For the Court to rule in favor of this argument is a complete departure from a Supreme Court that shows restraint. To so fundamentally restructure what is defined as a compelling interest and, in the process, single out a specific cornerstone of female health care as an interest not compelling enough, the decision in Hobby Lobby underlines the astonishing digression from historical restraint this Court has engaged in.
I love the Supreme Court. If you can’t tell from this piece, I have been studying it for years, even reading transcripts of arguments and listening to audio as I fall asleep. I think it is undoubtedly the branch of government required to be most honest. The Supreme Court must provide sound reasoning based upon past judicial rulings to develop its decisions. They are held accountable to explain the “who, what, when, where and how” of each decision they make, unlike our other branches of government. However, this Court is in danger of losing support among American citizens. Decisions regarding corporations as people – a notion so ridiculous I won’t even spend time debating its legal merits – and allowing religious beliefs of a select few to outweigh the compelling interest of adequate health care for the many will utterly destroy the Supreme Court’s reputation as an institution rooted in justice, and replace it with one riddled with political ambition. And if the Court does lose support among Americans, what does that mean for its future? How long until lifetime appointments are done away with? How long until elections decide who sits on the Court, politicizing the judiciary even further? How long until Americans demand cameras be allowed inside the Supreme Court, making a media circus out of yet another United States political institution? For the sake of preserving the institution the United States needs most, the Supreme Court needs to end its own politicization, and fast.