Introduction
Democracy in the United States was meant to give power to the people by creating a separation of powers into three main arms of government. The reason was to create a governance structure in which no single individual or institution of government will override its power and erode the civil liberties of individual Americans. The American democracy was seen as an improvement over the monarchy in Britain and the colonial government the people had experienced. One of the elements of American democracy was the establishment of an independent Supreme Court (head of the Judiciary) that has to be led by independent judges. All other members of the Legislature (Congress) and the Executive (President) are to be elected. However, the Supreme Court Judges are to be appointed. The purpose of this paper is to critically assess whether unelected judges preserve America’s democracy or not.
The ancient definition of democracy that evolved from Greece states that democracy is about government for the people by the people. This means that democracy is based on representation. And this includes the ability of the people to choose and select their own leaders directly. However, in the current status of the US constitution, the President appoints the Supreme Court justices who remain in their position until death or serious incapacitation. This comes with some inherent risks.
Supreme Court Judges are not allowed to make laws. However, they are charged with interpreting the law and stating what law is applicable in a major constitutional matter. Therefore, it can be said that they choose which law is applicable and they define what must be done in certain sensitive constitutional matters.
Black (para 5) states that there is a concept of Judicial Supremacy which implies that judges define which law is applicable in which situation during judicial reviews. Judicial reviews are steeped in the constitutional right to seek interpretation of major constitutional provisions in law. And by the right of the judiciary to define which law applies to which situation, they have the right to in-fact define which laws are applicable to which situation.
The idea of Judicial Supremacy implies that there is a potential gap that could be created if the judiciary is made up of people who are appointed by the head of the Executive (President). Therefore, it can be said that there is a major danger and the possibility of abuse by the president and these appointed Supreme Court Judges. This is because in reality, the right thing that ought to be done is to get the Supreme Court Justices elected by the people in order to preserve their best desires and their best requirements.
This gap was demonstrated by Thomas Jefferson who stated in Marbury VMadison that the judicial review concept could potentially open a floodgate that could prove to be problematic. In the case in question, there was a conflict between two constitutional laws in the United States and one of the parties presented the case to the US Supreme Court. The preliminary claim was on the premise that it was unconstitutional to present two conflicting constitutional provisions to the Supreme Court.
The Supreme Court ruled on Article III of the constitution on the question of whether the Supreme Court had the right to conduct judicial review or not. According to Section 2(2) of Article III of the US Constitution, the Supreme Court has jurisdiction over issues relating to the Executive and Legislative branch of government. This means that the US Supreme Court had the right to interpret whether a given statute by any of these two branches of government can be interpreted by the Supreme Court. As a matter of fact, this confirms that the two branches of government are subject to the Constitution of the United States. As such, the Supreme Court had the duty to ensure that all their actions and all their rulings are within the scope of the constitution. This affirms the US Supreme Court’s right and ability to institute checks and balances in relation to the other arms of government.
Therefore, Thomas Jefferson stated in 1804 that this is a major situation that could significantly limit the sphere of operations of the legislative and executive branches of government. Therefore, it is potentially dangerous for power to be given to a group that does not have to be elected by American people but by the President.
Procedural Issues with Unelected Supreme Court Justices
There seem to be risks relating to the lack of the observance of proper procedures in the legal system. “If democracy requires that values be chosen by electorally accountable procedures judicial review by unelected judges cannot be reconciled with a purely procedural definition of democracy”
Democracy is about rules and checks and balances. There is the need for people in authority and power to do things that are based on the best interest of the large majority of Americans. Therefore, the integration of unelected judges creates a risk relating to the abuse and misuse of their power and right as unelected representatives.
There is the potential for a sitting US President to influence the judiciary significantly and this undermines procedures in America’s democracy. This is because it is not likely a Judge who has been appointed by a sitting president or a given political party to go against the wishes of the president or his political party. Therefore, there is always a risk that the procedures might tilt in favor of some other parties and entities in the legal system.
In the Dred-Scott decision, which to-date, has been described as the most unconscionable decision by the US Supreme Court, evidence has come out to show that the sitting US President influenced the decision by the Supreme Court.
According to the facts of the Dred-Scott case, two classes of laws conflicted with each other. The federal laws stated that slaves could not be freed by federal laws and property laws made it impossible for state laws to deprive a slave-owner of his slaves. On the other hand, Dred-Scott found himself in a state where slavery had been banned and this was supported by Congress in the Missouri Compromise.
Therefore, the Supreme Court ruled between federal law and Congress’ law. The Supreme Court ruled that no African-American had any rights under federal law. Therefore, the Missouri Compromise of Congress could not be applied to overturn the US federal statutes.
Evidence shows that the Supreme Court was said to have come under the influence of the correspondence of the President. This implies that the Supreme Court Judges can be influenced and intimidated either directly or indirectly by the unelected Judges. Other people also rationalize this decision on the basis that the United States was on the brink of a split between states that supported slavery and those against slavery. Therefore, the Supreme Court had to sacrifice the African-Americans in order to achieve some kind of peaceful solution in the issue.
Recently, US President, Barack Obama was accused of manipulating and influencing the US Supreme Court decision concerning the Affordable Care Act. He is quoted as saying that he was confident the US Supreme Court will rule in favor of the Act because if they do not do so, it will be the first time that a conscientious law passed by Congress will be repealed by the Supreme Court. This shows that the presentation of unelected Supreme Court Judges can be problematic in many ways and forms.
Arguments in Favor of an Unelected Supreme Court Justices
On the other hand, some people argue in favor of the US Supreme Court and its elected justices because they do not think other approaches and methods are logical and appropriate.
In the words of one scholar, judicial review and unelected judges is undemocratic but not antidemocratic. This is because although it might not complement the strict essence and logic of democracy, unelected Supreme Court justices provide a service that strengthens America’s democracy.
This is because the role of the judiciary is to provide deliberative democracy. Therefore, they are given the training and experience that they need to pursue the true values of democracy and civil liberties in America in their rulings. Therefore, it is common for the American judiciary to come up with decisions that are somewhat consistent with the dominant views of Americans.
There is a trend towards consistency in the US Supreme Court. This is because there is always a body of judicial precedents that are consolidated over the years and they guide the court in how they should do things and carry out their decisions. Additionally, everyone who rises to the level to be considered for nomination is a person who has high levels of integrity. This means that such an individual might not betray the true ideals and views of the US constitution for anything.
It must also be noted that the US Supreme Court operates in a democratic manner. This is because there are an odd number of judges, which is normally 9. And there must be a majority decision and choice. Therefore, it can be said that there is a segregation of duties and each judge decides on each issue independently. Hence, there is no single individual who might be too manipulative or have too much influence and control.
Therefore, it can be said that the unelected justices of the US Supreme Court are not as undemocratic as it seems. They strengthen and enhance the democracy and provide a different approach of doing things. Also, they are given lifetime tenure in their position. This means that they are able to resist all forms of intimidation because once in office, no one can influence them or force them to do anything beyond the normal scope of delivering checks and balances.
It is therefore conclusive that the way the unelected justices operate creates some limits and checks. This is because there are inherently some limitations and some controls that prevent the Supreme Court Justices from going beyond their constitutional mandate.
Necessity of an Unelected Judiciary
There are some parties who believe that having an unelected judiciary is the best situation through which democracy can be entrenched in the United States. This is because to such thinkers, the Supreme Court plays an oversight position over all the institutions of the country. Therefore, there is the need for such a group to take an objective stand and guarantee an objective examination of facts and information in order to rule over it.
In other words, there is the need for a respectable upper class of society with a high level of integrity to discuss things and draw conclusions on it. Therefore, there is the need for the Supreme Court justices to be appointed after years of carrying out dedicated and untainted service to the American judiciary.
These individuals argue that Supreme Court judges are not elected on the subjective basis of any president. They earn their position by working hard and meeting high principles. Therefore, the appointment is based on merit rather than a favor or a corrupt activity meant to influence anyone or any group of people.
Secondly, the fact that they have a lifetime appointment means that Supreme Court Judges are put in a position based on merit and they are able to deal with things without any limits and caps. Supreme Court Judges are required to rule on the basis of two competing claims which include a commitment to a government founded on the will of the people and a simultaneous commitment to limit the potential excesses of popular will by resorting to fundamental law.
Therefore, the Supreme Court, it can be said that the Supreme Court seeks to promote the common good of America and enforce the fundamental values of the US Constitution. On the other hand, electing US Supreme Court justices comes with complications. This is because there is a question of who should vote and who should not vote. As it stands now, the process of appointing Supreme Court Justices comes under the recommendation of the body of Judges in America. Hence, it is based on extremely technical metrics that leads to logical results.
Asking all Americans to vote for judges might not be based on technical standards but on some standards not relevant to the judiciary and objectivity. There are also likely to be questions with political affiliations and issues with the funding of elections which will come up with issues and problems. Therefore, the system of appointing Supreme Court Justices is the only logical and important approach that can be put together to achieve results.
Conclusion
The study shows that there are many issues and problems with the approach of appointing judges to sit on the US Supreme Court. This is because the role of Supreme Court Justices is sensitive and they can technically make laws through Judicial Supremacy. And due to the nature of manipulation and control of affairs amongst the Executive, there is a problem with the true independence of the US Supreme Court. However, although it is undemocratic for US Supreme Court Judges to be appointed rather than elected, it is not antidemocratic. In this study, it has been identified that there is a lot of merit in choosing appointing Supreme Court Judges rather than electing them. This is because there are checks and balances that are put in place to ensure they work according to rules. Secondly, there are other restrictions on the government officials from controlling the Supreme Court Judges. Thirdly, they earn their position and the appointment of these judges is just a formal thing and it just confirms a senior judge to take up a seat on the Supreme Court. Finally, asking for Americans to vote for a Supreme Court Justice might be wrong because voters might not understand the technical dynamics of the position. There are also complications in organizing elections to replace Supreme Court Justices.
Works Cited
Black, Eric. Why should the unelected Supreme Court get the final say about our laws? 19 November 2012. Web. 13 July 2015. <https://www.minnpost.com/eric-black-ink/2012/11/why-should-unelected-supreme-court-get-final-say-about-our-laws>.
Chemerinsky, Erwin. Interpreting the Constitution. Santa Barbera, CA: ABC-CLIO, 2012. Print.
Hall, Kermit and Kevin McGuire. Institutions of American Democracy: The Judicial Branch. New York: Oxford University Press, 2014. Print.
Wayne, Stephen. Is This Any Way to Run a Democratic Government? Washington, DC: Georgetown University, 2015. Print.
