How powerful is the Supreme Court?

                As mentioned in a previous post, the Supreme Court of the United States is one of the most powerful of its kind in the world. However, it is also the weakest of the three branches of government within the states. The answer to the question ‘how powerful is the Supreme Court?’ therefore rests to a significant extent upon which comparison we make. Let us consider both in turn.

                In terms of its relative power to other judicial branches, the Supreme Court of the United States is indeed significant. For instance, it was the first court in the world to discover the power of judicial review. This in itself underlines the power of the judicial branch in the states. Secondly, the Supreme Court has made a number of judgments that have transformed American society in a manner that other judicial branches of government simply could not compare with. 

                In terms of its relative power to the legislature and the executive, the United States is hardly different to any other country. One would expect the judicial branch to be the weakest because it has no legitimacy from the people – unlike the other two branches. It would be unusual for any country to have an elected and therefore accountable judiciary. That said; the judicial branch is not without power entirely. There are essentially two sources of power available for the judicial branch; that of judicial review and constitutional interpretation.

                As considered in the previous section, judicial review enables the SCOTUS to rule any action taken by elected politicians as unconstitutional. For instance, the Defense of Marriage Act (DOMA) was ruled unconstitutional in the case of US v. Windsor (2013). Historically, there are several dramatic case studies to consider which truly underline the raw power of judicial review. Take the case of the Watergate scandal, when President Nixon was forced to hand over White House tapes. The Supreme Court had ruled that he was acting in breach of the Constitution by claiming executive privilege. President Clinton was also curtailed by the judicial branch over the use of line-item vetoes. More recently, the Bush administration was ruled to be in violation of the Constitution based on its treatment of terrorist suspects.

                It should be self-evident that judicial review is the most important power held by any judicial branch of government. It enables members of the highest court in the land to pass judgments that undermine the power of politicians, and underscores the extent to which the judiciary in truly independent of Congress and the White House. However, having the ultimate responsibility to interpret the Constitution also confers power upon the Supreme Court. There are many fascinating case studies to consider on issues such as racial de-segregation, abortion, affirmative action and gay marriage. In the famous case of Brown v. Board of Education, James F. Byrnes quipped that “the Court did not interpret the Constitution – the Court amended it.” This was because the Brown judgment effectively reversed an earlier ruling that considered segregation to be constitutional. Constitutional interpretation can also be based upon hidden meanings (or penumbras), which can be highly significant in terms of the power exerted by the judicial branch.

                When seeking to assess the overall power of the Supreme Court, there are counter-points one must consider. For one, the Supreme Court has no power of enforcement of its decisions. Secondly, the remit of the Supreme Court is on balance a limited one. Over 95% of all cases brought to its attention go unheard because they hold little or no constitutional significance. Crucially, it is judges who decide which cases are to be heard. For instance, in 2010 the Supreme Court refused to hear the case of Kiyemba v. Obama despite its link to habeas corpus. Thirdly, the Supreme Court can only make a certain number of judgments in any given year. Moreover, Congress can always pass a law that might be able to circumvent the initial ruling. Furthermore, any interpretation of the Constitution can be overturned by a constitutional amendment. Finally, the Court must wait for others to bring a case to their attention. To take a recent illustration, NFIB v. Sebelius (2012) was brought to the Court’s attention by Republican governors who questioned the constitutionality of the mandated clause - albeit for partisan reasons.

                In terms of the ideological debate within the states, it should be noted that both liberals and conservatives will have cause to criticize the decisions taken by the Supreme Court. Equally, it should be noted that both liberals and conservatives may at times criticize the same judgment. This might imply that the power of the Supreme Court is of some weight. For example, a law to prevent indecent images of children was ruled unconstitutional in the case of Reno v. ACLU (1997). The SCOTUS struck down anti-indecency provisions within the Communications Decency Act because it violated the first amendment. The Supreme Court objected to the imprecision of phrases contained within the Act. In a similar case (Ashcroft v. Free Speech Coalition (2002)) the Court ruled that the 1998 Child Pornography Protection Act (which banned online child pornography and specified a mandatory prison sentence for those who sold, distributed or possessed images that “appear to be” or “convey the impression of” children engaged in sexually explicit conduct) was also ruled to be unconstitutional. The SCOTUS struck down the Child Pornography Protection Act because it abridged the freedom to engage in “a substantial amount of lawful speech.” As one might expect, both decisions were widely criticized by liberals and conservatives. That said, it could also be claimed that these judgments exemplify both judicial independence and the ability of the Supreme Court to act effectively.