Views expressed in opinion columns are the author’s own.
My Diamondback colleague John-Paul Teti argued last week that we should abolish the Supreme Court on the grounds that it’s historically immoral and fundamentally undemocratic. While he’s right that the Court is a deeply flawed institution — and has certainly committed its share of moral wrongs over its lifetime — I argue that it remains practically necessary given the structure of our judiciary. Moreover, in the particular case of a supreme judiciary, significant separation from the democratic process is in fact desirable.
The federal judiciary has emerged in the past year or so as one of the last bastions of resistance against the actions of the Trump administration, as a result of the somewhat controversial power of district courts to issue nationwide injunctions halting policies they deem illegal or unconstitutional.
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President Trump’s travel ban and family separation policy were both challenged in this manner, though the injunction staying the travel ban was later lifted by the Supreme Court. Presumably, lower courts would retain this power if we were to abolish the Supreme Court.
This leads to the first practical argument for the continued existence of the Court, and the reason nationwide injunctions by lower courts are controversial: the practice of so-called “forum shopping,” where plaintiffs choose the court in which they sue based on how favorable the corresponding judges are to their cause.
For instance, Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents policy was challenged in the Brownsville division of the Southern District of Texas, not because the residents of Brownsville had any more claim to injury at the hands of the policy than anyone else, but rather because the judge who heard the case was a known critic of Obama immigration policy (the suit was successful, and an injunction against the policy was granted).
Critics of the Court often point to the seeming arbitrariness of the factors that influence its decisions. Why should it be, they argue, that years of legal precedent will skew conservative simply because a Republican was president when Anthony Kennedy retired? This is a fair criticism, but opponents of arbitrariness would surely be horrified by the prospect of the ultimate legality of national policy being determined by the geographical location where suits are raised. Forum shopping happens quite frequently now, but at least the Supreme Court stands as a slightly less arbitrary recourse for particularly weighty questions.
Teti identifies a series of morally reprehensible decisions by the Court in the 19th and 20th centuries, pointing out that many of the “revolutionary” civil rights cases of later Courts were simply undoings of the mistakes of past Courts.
His first example is the overturning of the Civil Rights Act of 1875 banning segregation. Though this was surely both legally and morally disgraceful, historian John Franklin notes that the Act was “never effectively enforced” in the first place, leading to the second practical argument for the Supreme Court: While America has never needed the Court’s permission to be racist, sexist, ableist and otherwise bigoted, it has often needed the Court’s censure to force progress.
Would Jim Crow have lasted as long as it did without Plessy v. Ferguson? Difficult to say, but it seems probable; the Civil Rights Act of 1875 still allowed for segregation in public schools, and Americans were no more racist after the decision than before. Would Jim Crow have ended as soon as it did without Brown v. Board of Education? Probably not. Particularly in the past 50 years or so, it’s reasonable to argue that the Court has had a net morally positive effect on society.
This effect is compounded by the lengthy set of civil liberties the Court has affirmed without initially taking away. We have the Supreme Court to thank for the guarantee of right to counsel, the Miranda rights, public education for children of undocumented immigrants and sexual harassment as unlawful discrimination. Importantly, the Court also has a consistent record of strong defense of First Amendment rights, the importance of which, especially for marginalized groups, I have previously defended.
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This brings me to a defense of the fundamentally undemocratic nature of the Court. Protecting the aforementioned rights has at various points required taking the side of a vandal/thief, kidnapper/rapist, and the Westboro Baptist Church. Any elected official who took those positions would doubtless not remain elected for long. Insulation from the wrath of the mob is essential to safeguard periodically unpopular rights, and that requires distance from the democratic process.
Teti is right that the Supreme Court is broken in many ways, but eliminating it would leave us with an even more broken system of government. To maintain some sense of rationality in the process of adjudicating federal actions, to act as the occasional catalyst for important societal change, and to protect certain important but optically unsavory rights, we unfortunately need our nine “lawyer-kings.”
Joey Marcellino is a senior jazz saxophone, physics and philosophy major. He can be reached at fmarcel1@terpmail.umd.edu.
