"Many jurists in the United States regard constitutional review by courts in the human rights sphere as our nation's hallmark and pride. I agree." 

                                                   -- Supreme Court Justice

                                                      Ruth Bader Ginsburg

 

The presidential election of 2000 went on and on in the United States, to the consternation of many. The deciding votes were cast in the state of Florida, and long after election day ended, questions were raised about whether some of Florida's ballots had not been counted because of mechanical errors, and about what should be done if that was the case. The state legislature of Florida got involved. So did a number of state judges. Heated speeches were made by Florida's secretary of state and by members of the U. S. Congress. Partisans of both candidates, George W. Bush and Al Gore, demonstrated in Florida and at other sites scattered throughout the United States.

 

While the controversy raged, a case about it was brought before the U. S. Supreme Court. The decision handed down by the Court effectively declared Bush the victor over Gore.

 

And that was that. Gore made a speech congratulating Bush. The demonstrators went home. Politicians from the party that had lost control of the presidency went on television to declare that it was now time to join forces and get on with the country's business. Not everyone was happy with the court's decision by any means, but there was near-unanimity that it had to be accepted. And while there were rumblings about the political preferences of various justices, no one doubted that their decision had been made quite independently of other political actors.

 

The independence of the federal judiciary and the societal agreement that its pronouncements must be honored is a hallmark of the American political system. There is in fact no other court in the world with anything close to the extraordinary power that the Supreme Court has to decide societal disputes, interpret the national constitution, and make public policy. William Rehnquist, the chief justice of the Court at the time of the election dispute, remarked some years earlier that the U.S. judiciary is "one of the crown jewels of our system of government."

 

The question frequently asked about the U.S. judiciary has two parts. First, why did the United States adopt a mechanism that allows a few judges who are appointed rather than elected (and who hold their position for life) to tell the other branches of government what they can legitimately do? Second, how does that kind of institutional power comport with the rule of the majority implicit in a democratic political regime? The answer to the first query lies in the U.S. view of what government is all about.

Creation of the federal judiciary

The Founding Fathers who wrote the U.S. Declaration of Independence of 1776 and the Constitution of 1789 believed that the rights of the people preceded the existence of governments. Human beings are born with rights, they declared in the Declaration, and the purpose of government is to protect and enhance those rights. Government, for example, has to safeguard the physical well-being of people and their property, which is why there are criminal laws and governmental officials to enforce them.

 

But if the new government protected the people from each other, the framers of the Constitution asked, who would protect the people from the government? Governments could be wrong, governments could be despotic, governments could abuse the people's trust and abridge their rights. One of the crucial elements of American political thought is the conviction that all institutions are potentially corrupt and that all politicians can be corrupted, not only by the tangible lure of money but by the even more pernicious one of self-righteousness. People in power are easily led to believe that what they want to do is by definition the right thing to do. This is all the more true in a democracy, where politicians can assure themselves that their election by the people proves that the people trust them to choose the right answers. How, the writers of the Constitution wondered, could government be made sufficiently strong to safeguard citizens without being rendered so strong that it became a bastion of unchecked power?

Their answer was to check the power by dividing it. There would be three separate branches of government: the presidency, the legislature (Congress), and the judiciary. Congress could pass no laws without the agreement of the president; the president could enact no policies without the consent of Congress; and both would be held accountable by the judiciary, which would assess their actions on the basis of the powers given to each branch in the Constitution. The judiciary would be the final interpreter of the Constitution, which was the ultimate statement of what the sovereign people wanted their government to do and the limitations on governmental power. If the "political branches" -- the president and Congress -- attempted to go beyond those guidelines, citizens could challenge these actions on constitutional grounds within the court system. The judiciary would then step in and strike down laws inconsistent with the Constitution.

 

As one of the framers of the Constitution put it, the judiciary itself would have neither the power of the purse nor of the sword. The judiciary could field no army or police to enforce its decrees, nor could it withhold the budgets of the other branches. All it could do was show itself to be so politically independent, so protective of the peoples' rights, that both politicians and citizens would feel constrained to obey its decrees.

 

If the judiciary was to speak without fear or favor, if it was to be truly independent, it had to exist outside the control of the other branches. Thus, the U.S. Constitution provides for a Supreme Court. It charges Congress with creating lower-level federal courts as well, the judges of all of those bodies to be nominated by the president and confirmed by majority vote of the Senate (the upper house of the Congress). The first Congress established such a federal judiciary, consisting of trial-level courts and intermediate appellate tribunals, with the Supreme Court as the final court of appeal. Federal judges at all levels hold their positions for life (and by law a judge's salary cannot be reduced). They therefore need have no concern that an unpopular decision will lead to dismissal. A federal judge may choose to leave the judiciary for another kind of job or, although this is rare, decide to resign in order to run for office. A judge of one of the lower federal courts may hope to be appointed to a higher federal court; but, equally, a judge can hand down decisions knowing that his or her job is secure for life no matter how angry those decisions may make either politicians or the public at large.

 

The last statement seems to suggest a paradox. On the one hand, federal judges are appointed to make certain that the will of the people, as expressed in their Constitution, is supreme. On the other, appointment for life implies that judges can hand down decisions that the people consider wrong, and that run counter to the popular will. And if it is the politicians in the presidency and the legislature who choose the judges, might not the judges' decisions reflect partisan preferences rather than either majority wishes or constitutional directives? That raises the question of how the selection process actually works.

 

The selection process and judicial independence

It is the president who nominates people to fill all open federal judgeships, including those on the Supreme Court, and presidents naturally tend to choose potential judges who agree with them philosophically. The two lower tiers of federal courts have jurisdiction over specific geographic areas and, because senators defer to each others' preferences when deciding to confirm a nomination, presidents typically consult with the senators who represent an area before appointing judges to it. That is not the case when Supreme Court justices are appointed, as their jurisdiction is national. It also became customary for late-20th-century presidents to take into account geographical distribution, religion, race, and gender when nominating people to the highest court, on the theory that this enhances the credibility of the modern court.

 

The lifetime tenure these judges enjoy, however, limits the influence presidents have on members of the Supreme Court. While potential justices' views can be assessed on the basis of the decisions they have made as politicians or lower court judges, these may not prove determinative of what they will do once they reach the Court. When, in 1953, President Dwight Eisenhower appointed Earl Warren to the Court as its chief justice, for example, he knew Warren to be both a former attorney-general of California who had presided over the removal of Japanese-Americans in that state to relocation camps during World War II, and a former prosecuting attorney and governor who was tough on crime and criminals. But as chief justice, Warren became instrumental in forging a unanimous Supreme Court that declared racial segregation in public schools to be unconstitutional. It was in great part Warren's influence that led his Court to interpret the Constitution in the 1960s as mandating greater protection than had been the norm for accused persons as they moved through the criminal justice system. When Warren's Court struck down the tradition of according greater weight in legislative elections to the votes of citizens in rural areas than to those of their urban counterparts, Eisenhower was reportedly so enraged by that move that he declared that if he had anticipated it, he never would have named Warren as a judge.

 

While Warren's reasons for these rulings were no doubt partly a function of his personality, his seeming change of governmental philosophy also reflected a phenomenon that is apparent in the judicial careers of many Supreme Court justices. Many of them have served in elected office, where the need to satisfy voters and run for re-election has made them focus on exactly the kind of local political considerations that the people who wrote the Constitution were attempting to avoid in creating lifetime judgeships. Other future justices serve on state courts, where it is unnecessary to interpret the federal constitution, or on lower federal courts, where they can be certain that if they are mistaken in their reading of that document, the mistake will be rectified by the Supreme Court.

 

Once they reach the Supreme Court, however, justices are freed from the necessity of catering to popular moods. They quickly become aware that they are the final arbiters of the nation's basic law -- there is no higher tribunal to correct their errors -- and they frequently reflect in a new way on what the lofty phrases of the Constitution do and should mean.

 

Longevity also plays a role in judicial independence. The issues that may cause a president to appoint one person rather than another to the Court may become irrelevant to the political agenda during the decades of a justice's tenure, and other matters that were not thought of at the time of his or her appointment may surface as prime political disputes as the years go on. There is no way a president can assess either phenomenon in advance. When President Richard Nixon appointed lower federal court judge Warren Burger as chief justice in 1969, the question of gender equality was absent from the Supreme Court's docket. There was no way for Nixon to foresee that it would become a key issue for the Burger Court of the 1970s, or for Nixon to choose a justice who felt one way or another about the matter.

 

Judges are as much citizens in a free society as is anyone else. Like the rest of us, they necessarily reflect the beliefs that were dominant while they were being raised. At the same time, they are members of a society in which values constantly evolve, as they do in all societies, and which experiences technological changes that raise novel legal problems. They talk with people outside the Court, they read the newspapers, they watch television. They know which matters have become so important to the society that they have leapt to the top of the agenda of the Congress, the president, and the legislatures of the states. When the justices are confronted with constitutional phrases written in 1787, such as "commerce among the several states" or "due process of law," and they try to apply them to specific cases, they cannot help but read the words with an awareness of what "commerce" means to society at a given moment or what kind of "process of law" the society now considers to be sufficient.

 

While they are protected from the passing whims of society and from human ambition, then, the justices scarcely live or do their judging in a vacuum. Judicial independence does not imply anything like complete separation from the popular will and the desires of the majority, even while it does mean a certain degree of distance.

 

There are two additional checks on judicial power built into the U.S. system. While federal judges are generally described as holding their jobs for life, they actually are appointed for "good behavior," so that a criminal or otherwise unacceptable act can trigger a congressional trial that can lead to a judge's ouster. And Congress can through legislation eliminate an area of the law from the Supreme Court's appellate jurisdiction, meaning that it could decide, for example, to say that the Court can hear no appeals from lower courts in cases involving claims of religious or racial discrimination.

 

While a handful of lower court judges have been ousted by Congress, no Supreme Court justice ever has, although many legislators have fulminated against many Supreme Court rulings. Congress has used its power over appellate jurisdiction very sparingly. The reason for congressional restraint lies primarily in the way the Supreme Court has gone about its job.

 

The Supreme Court and constitutional interpretation

The Constitution was written at a moment in U.S. history when it was assumed that the federal government would be one with severely limited authority. After the American Revolution began in 1776, the 13 former British colonies that came together to form the Union had declared themselves independent states in possession of all governmental powers. Recognizing, once the war had been won, the necessity to approach foreign affairs as one entity and unify the nation's commercial standards, they nonetheless believed that the national government they established to fulfill such functions would not be of primary importance in the lives of the citizenry. The states would retain control over day-to-day life in areas such as public safety, education, welfare, health, and local commerce.

The Constitution, therefore, expresses the mandate of the people in very broad terms. One of its clauses, for example, gives Congress the power to regulate commerce with foreign nations and "among the several states." Back in the 18th century, when most commerce was local, "among the several states" indicated commerce that actually crossed state lines. With the industrial revolution of the 19th century, the technological revolution of the 20th century, and the kind of globalization that exists in the early 21st century, the meaning is much less clear. Almost all of the goods sold in shops in any one state are now produced in other states (or other countries), and the American people are dependent on interstate as well as foreign commerce for basic commodities. Corporations have become national (and international) rather than local, with the power to take their products elsewhere if individual states attempt to enforce regulations aimed at the public safety and welfare. Who will protect consumers from shoddy or unhealthful products?

The answer of the Supreme Court, beginning in the 1930s, has been that it interprets the commerce clause to mean that the federal government can regulate commerce that has any interstate component, however small or remote, and for purposes that have more to do with the public welfare than with commerce as such. The result is, for example, that sanitary conditions in a factory can be monitored by the federal government when any of the raw materials the factory uses or the products it creates have traveled or will travel across state lines. The wages and hours of the employees in factories and shops are subject to federal regulation, ostensibly because many of the commodities they produce will be sold in other states. Food and drugs cannot be marketed in the United States unless they are approved by the federal government, ostensibly because they, too, cross state lines. In fact, by interpreting the vague commerce clause so broadly, the Supreme Court has made national policy and has helped to create a limited form of welfare state, one in which the government takes substantial responsibility for the health, safety, and well-being of the citizenry.

 

Other clauses in the Constitution have been extended by the Supreme Court in similar fashion. Over the centuries, the Court has interpreted early constitutional commands to suit societal needs, as those needs are perceived by the Court, within an interpretive framework that has remained deferential to U.S. constitutional tradition. The result has been twofold.

 

First, because the Constitution has been interpreted by the Supreme Court in a way that is evolutionary but respects tradition, the citizenry has seen little need to amend it. The Constitution today contains only 27 amendments, 10 of which were written by the very first Congress. Given the difference between the United States at the end of the 18th century and the United States today, that is a remarkably small number.

 

Second, because the electorate is satisfied with the result of Supreme Court interpretation, the court gradually has achieved an almost hallowed status. It is assumed, as indicated by the way the country accepted the Court's pronouncement of the victor in the 2000 presidential election, that the Court is able to interpret the commands of the Constitution as no other body can. Whenever the president and Congress enact a statute, the logical assumption is that those bodies, familiar with the provisions of the Constitution, believe that the law they have passed is consistent with that document. But if the Supreme Court disagrees and strikes down the law as violating the limits of governmental power delineated by the Constitution, the law becomes null and void. Because the Court's justices write legal opinions explaining the reasoning behind their decision, legislatures on occasion may revise struck-down statutes in an effort to make them comply with the Court's ruling. But the chief recourse the electorate has in these situations is to amend the Constitution -- and, as we have seen, that does not happen frequently. The reason is that the people trust the Supreme Court, a trust that stems in large part from the way the Court has protected individual rights.

 

The federal judiciary and human rights

The kinds of rights that are protected by the U.S. Constitution and by constitutions in many other nations -- speech, press, religion, freedom from arbitrary arrest, fair procedure in the criminal justice system, and so on -- suggest that majorities frequently are the enemies of rights. If the majority believes passionately in a particular idea, it will not welcome the expression of the opposite idea and may be inclined to suppress it. After all, the well-being of the community is affected by the ideas people hold. If most of the people in a nation believe equally passionately in a particular religion, the existence of other religions that seem to challenge it will be no more popular than unwanted ideas of other kinds.

 

But, as we have seen, the starting point of the U.S. political system is the individual and his or her rights. The Constitution lays down the limits of governmental action and, by extension, the limits of control by the majority over the individual. By including rights, the Constitution in effect delineates those areas of life in which the individual has to be left alone to do what he or she considers best: to agree or not agree with the majority's ideas, to worship as he or she sees fit, and so on. The question then becomes, what happens when what the individual views as rights conflict with the majority will? Can the majority be trusted to ignore its own strong feelings and respect the principle of individual rights?

 

The answer of the Constitution's framers, as we have seen, was that it would be naﶥ to leave protection of rights in the hands of the majority or those governmental bodies elected by the majority. It was necessary to create an independent judiciary that would be unafraid to assert human rights no matter how passionately the majority objected.

 

The federal courts have taken their role as protector of human rights -- or, as they are usually referred to in the United States, civil liberties and civil rights -- with great seriousness, and in doing so they have expanded those rights in ways that the Constitution's framers could not have anticipated. While the word "privacy" is not mentioned in the Constitution, for example, the Supreme Court has found an intention to protect privacy in clauses such as the guarantee against unreasonable searches and the guarantee of freedom of communication. The right to free speech has been interpreted by the Court as extending not only to television and the Internet but to non-verbal forms of communication such as artistic expression and the wearing of political symbols.

In asserting the rights of the people, the federal judiciary has both observed the mandates of the Constitution without regard to popular passions, in a way that less independent tribunals could not, and proclaimed its identity as an institution that is part of the give-and-take of political life. When, in 1954, Earl Warren's Court unanimously held that racial segregation in schools violated the Constitution's guarantee of equal protection of the laws for all people, it implicitly recognized and encouraged the nascent civil rights movement. The Court eventually came to feel that it could not interpret the Constitution as prohibiting private racial discrimination, but its rulings encouraged Congress to pass new laws doing so -- and when those congressional enactments were challenged in the courts, the Supreme Court upheld them. When Warren Burger's Court ruled for the first time that gender equality was a constitutional concern, it in effect recognized the changing status of women and gave the emerging women's movement the assurance that its claims would be taken seriously by at least one branch of the government. What the Court has affirmed is that those who are unpopular, those who are different, and those who challenge the existing order can nonetheless get a full hearing when they assert that their rights have been violated.

 

This, ultimately, is the justification for appointing judges and according them lifetime positions. As in the presidential election mentioned above, citizens may well disagree with specific decisions made by the Supreme Court. The independence of the judiciary, however, assures the electorate that the Court will almost always base its decisions on law rather than partisan politics; on overarching democratic principles rather than the passions of the moment. Ultimately, the role of the independent judiciary is to implement the American belief that majority rule is only one aspect of a real democracy. Democracy also consists, importantly, in protection of the rights of the individual. Providing that protection is the federal judiciary's primary job.

 

For Additional Reading

Henry J. Abraham, The Judiciary: The Supreme Court in the Governmental Process (10th ed., New York University Press, 1996)

Vincent Blasi, ed., The Burger Court (Yale University Press, 1983)

Peter H. Irons, A People's History of the Supreme Court (Viking, 1999)

Anthony Lewis, Gideon's Trumpet (Vintage Books, 1999)

Robert G. McCloskey, The American Supreme Court (2nd ed., University of Chicago Press, 1994)

David M. O'Brien, Storm Center: the Supreme Court in American Politics (5th ed., W.W. Norton, 2000; 4th ed., ppk., W.W. Norton, 1996)

About the Author:

Philippa Strum is Breukleundian Professor Emerita of Political Science, Brooklyn College-City University of New York, and Gibbs Visiting Professor of Constitutional Law, Wayne State University. She has published numerous books and articles in the field of American government, including the U.S. judiciary and human rights.

(Philippa Strum)