Presidential Commission on the Supreme Court of the United States
On the one hand, especially because judges and Justices sometimes must decide issues about which reasonable people disagree, there is an argument that the judiciary must not be entirely independent of the elected branches of government. Some aspects of our system—including not only the appointment and confirmation process, but also Congress’s role in setting the Court’s budget, jurisdiction, and size, and its control of the impeachment process—ensure that the judiciary is not entirely independent but is to some degree responsive to elected officials and therefore to public opinion. On the other hand, the role of the judiciary, in any system, is to decide cases according to law and not according to the desires of political actors. Beyond that, in our constitutional system the judiciary has the responsibility to protect minorities against impermissible exercises of political power. The independence of the judiciary as an institution is crucial to the courts’ ability to carry out this responsibility. We consider this clash between ideals more fully in our discussion of the relationship of the Court to democracy.
3. Democracy
One far-reaching critique of the Court, also sometimes cast in terms of legitimacy, asserts that the Court is too willing to intrude into matters that should be left to democratic political processes. According to this line of criticism, many concerns about the Court are derivative of its outsized role in the system of government. When the Court’s decisions are so important, the confirmation process becomes more contentious and partisan; the incentives to attempt to use the Court for partisan purposes become greater; and worries that the Court will entrench views that the people have rejected become more acute.
This criticism highlights the tension between the role of an independent judiciary as a check on the political process and the idea that our constitutional democracy must provide a democratic check on the judiciary as well. The democratic check advocated by some critics takes a variety of forms, each of which has different implications for the relationship between the Court and democracy. Because each of these suggested ways of defining the relationship between the Court and democracy also implicates the values associated with legitimacy and judicial independence, we consider them in some detail.
a. Deference to the Political Branches
If the fundamental democratic goal is ensuring that decisions are made by relatively democratic institutions, such as the legislature, a goal of reform might be to ensure that the Supreme Court not interfere (or not interfere too readily) with the outcomes of the democratic process—by, for example, holding unconstitutional federal or state legislation. Some
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