Joshua Paschal

Today, I want to pose a question that I think gets swept under the rug both in everyday circles and many academic circles. Who should control the courts? While the answer is more intuitive and guttural when it comes to who should control the legislature, the question of the courts is less clear as to where our commitments lie.

The Supreme Court of the United States, for example, is not really controlled by anyone or anything. This may seem strange at first, but to paraphrase the late Justice Robert Jackson: the court’s infallibility is its finality, not its inability to be mistaken. The Court does make obvious mistakes: most clearly Dred Scott, Korematsu, and more controversially, Citizens United. But this does not mean SCOTUS is entirely without controls, just that nothing sits atop it.

Control, however, comes in many forms. The federal courts are controlled by legislation by Congress, nomination procedures by the President, confirmation by the Senate, ethics rules, and the looming possibility of impeachment. And so, judges are controlled by paper at a minimum. But this is not the kind of question I want to discuss.

Who and what should control the Supreme Court? This does not even need to be the current US Supreme Court. What, in theory, should restrict what the highest court of a country can legally do (if anything at all)?

The most obvious answer is the Constitution, but this is exceptionally unclear. This would allow a Constitutional court to declare the Constitution says whatever it so desires, even if such readings are patently absurd. The only restriction on such a court would be basic legitimacy: but given legitimacy is fairly abstract and does not amount to much beyond civil engagement in a democracy, a further answer is needed. Legitimacy should play a part, but it needs to be expanded upon.

The thought I want to purpose for today is straight-forward: how much influence should the people put on the Court? For this discussion, I want to take note of three types of answers to this question: 1) public opinion and amici, 2) legislative supremacy, and 3) Constitutional referenda.

The first answer is what is currently practiced in the United States. Justices are often well aware of public opinion on certain matters–but, such information ends up being limited only to major cases that actually manage to capture public attention. Special interests, however, are keen to influence the Supreme Court. And special interests are allowed to do so via the submission of special informative briefs: amici curiae (lit. “friends of the court”). One could take a reactionary position on this–amici distort the special status of the Justices and thus should not be allowed–but I suspect this would not be a plausible position for most readers.

The second answer is a fundamental shift in the relationship between the branches. While the United States is centered around the separation of powers, this is not an essential feature. Indeed, even in the Constitution, the legislature has the power to designate what form the entire federal court system takes. There is no outline of such in the Constitution: roughly speaking, the Constitution only calls for such courts to exist. Judicial review as final and infallible is likewise, arguably, a contingent feature (indeed, Marbury v. Madison was fairly controversial in its day), and one could make the courts subservient to laws. Some laws like this already do exists: laws that “supplement” the meaning of the Constitution for the Courts to then follow and utilize in their activity. But we also see this court dependence in other countries, most notably the United Kingdom before the creation of SCOTUK and modern China (where the main legislative body can explicitly overrule court rulings by simple vote).

The third answer is possibly both the most extreme and the most democratic. Why does the Supreme Court get the final say on all matters? Sure, some matters are highly technical and beyond public scope: but what about fundamental questions of the Constitution? For example, if a suit arrives at the Supreme Court arguing that the right of privacy is found as an unenumerated right in the Constitution, why not allow the people to vote on such? Forget the process of amending the Constitution: if the people declare their right as such that is then perfectly consistent with the 9th amendment.

I’ll leave it at that for now, feel free to let me know what you think.