Is The Supreme Court Undemocratic?

Activists protest on the steps and plaza of the Supreme Court after the confirmation vote of Supreme Court nominee Brett Kavanaugh, on Capitol Hill, Saturday, Oct. 6, 2018 in Washington. (AP Photo/Alex Brandon)

Professor Leonard Weinberg is a Senior Fellow at CARR, Professor Emeritus at the University of Nevada, and recipient of both Fulbright and Guggenheim research awards.

US Supreme Court Justice Samuel Alito and Chief Justice John Roberts have recently denied that the court is a partisan institution. Rather than render its decisions based on Republican or Democratic perspectives, they claim the justices rely on the Constitution, public law, and legal precedent. Their remarks were made, evidently, in reaction to opinion surveys reporting that the American public was reaching the opposite conclusion.

However, the court, much like Congress and the presidency, is a highly partisan institution, now dominated by Republicans. (Justice Roberts’ appointment to the court was based in part on his membership on the GOP legal team that represented George Bush’s successful effort to win the 2000 presidential election by having the court order Florida officials to stop recounting ballots when it appeared as if Al Gore might come win the state.)

What Alito and Roberts are offering the public is what the Italian anti-Fascist political scientist Gaetano Mosca (1858-1941) would surely have labeled a political ‘formula.’ Mosca’s volume The Ruling Class  (published in English in 1939), made a sweeping argument about the rulers and the ruled. His argument went approximately as follows: All societies above the most primitive develop a distinction between the rulers and the ruled, between a ruling class (classe dirigente) and those they govern. This is simply the nature of things. Some ruling classes are closed to those outside, while others allow those outside, meeting various criteria to become members. (Thomas Cromwell in Tudor England for example.)

On what basis does a ruling class achieve compliance among the ruled? Brute force is rarely sufficient, certainly not in the long run. At this point in his argument, Mosca introduces the idea of a ‘political formula.’ All ruling classes throughout history evolve some rationale, some justification why those they rule should do what they’re told. In religious societies, a priestly caste ruled by successfully claiming it was acting in accordance with the gods’ demands. In monarchies, the widely used formula is the ‘divine right’ of kings. ‘ In the former Soviet Union, the formula had it that the proletariat ruled through its instrument the Communist Party: what the communist dissident writer Milovan Djilas called the ‘new class.’

Mosca, at least until the advent of Italy’s Fascist dictatorship in 1922, regarded democracy as the most effective (and deceptive) of all political formulas. The democratic formula achieved popular compliance by claiming the “people” ruled. Instead of warriors, priests, monarchs, or the vanguard of the proletariat (as in the present “People’s” Republic of China), the democratic formula is based on the illusion that ordinary citizens through their elected representatives really determine the country’s direction.

Certainly, in the United States, the democratic formula seems to be wearing thin. Crackpot conspiracy theories and various flimflams aside, part of Trump’s voter appeal surely lies in his ability to challenge America’s democratic formula.

This brings us to the Supreme Court. In its nature, the Court does not fall under nor is it protected by the democratic formula. Voters do not choose its members, nor are the justices subject to popular recall. They ordinarily serve lifetime appointments. Their decisions may or not be popular with American citizens. Thanks to the Court’s ability to judicially review legislation enacted by Congress and signed by the President, they may violate the fundamental premise of the ‘democratic formula’.

In fact, the American Supreme Court and those scholars, journalists, and politicians supporting its role in American political life rely on another formula; one that more than anything else resembles rationales used by ruling religious or priestly elites to achieve compliance with their views.

In the American case, it is fidelity to what amounts to another ‘sacred text,’ the Constitution, that provides the Court’s justices with what Mosca defined as a political formula. Instead of the sayings of the Prophet, the Supreme Court justices refer to the Founding Fathers and their statements at the constitutional convention and later judicial observations. By acting in this way and by claiming to be acting in conformity with the Constitution’s unerring statements, the justices are able to invest their rulings with a certain mystique.

Once this mystique is lost, the Court, as Justices Alito and Roberts fear, will lose its claim to be removed from the realm of Republican and Democratic party politics. The robes and rituals will no longer suffice.

Following ex-President Trump’s selection of three highly conservative justices to the Supreme Court,  a number of legal scholars, journalists, and politicians, have called for reform. The most widely ​discussed of these proposals involve increasing the size of the court from  9 to 12 (or more) justices, and the imposition of term limits: instead of lifetime appointments justices would then serve terms of say 15 years.

In the unlikely event either or both of these changes were to be made into law, they would not suffice to convince the public the court of the non-partisan nature of its rulings. What might make a difference in this regard is changing the selection process. Instead of being nominated by the president and confirmed (or not) a majority of senators, justices might be chosen by a panel or panels composed of legal scholars along with randomly chosen members of the voting public. In other words, the selection process would represent a combination of legal expertise and democratic appraisal.

Whatever the reform may be, it appears some form of change is necessary.

This article is brought to you by the Centre for Analysis of the Radical Right (CARR). Through their research, CARR intends to lead discussions on the development of radical right extremism around the world. Rantt has been partnered with CARR for 3 years. We’ve published over 150 articles from CARR’s network of PhDs, historians, professors, and experts analyzing extremism and combating disinformation.