Supreme Court of The United States - Criticism

Criticism

Some criticisms leveled at the Supreme Court are:

• Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology. An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts. An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion in part on the basis of the "right to privacy" expressed in the Fourteenth Amendment, a reasoning that some critics argued was circuitous. Legal scholars, justices, and presidential candidates have criticized the Roe decision. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan and former presidential contender Barry Goldwater. Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers." Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up." During different historical periods, the Court has leaned in different directions. Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead. Critics include writers such as Andrew Napolitano, Phyllis Schlafly, Mark R. Levin, Mark I. Sutherland, and James MacGregor Burns. Past presidents from both parties have attacked judicial activism, including Franklin Roosevelt, Richard Nixon, and Ronald Reagan. Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état, – slow-moving and genteel, but a coup d'état nonetheless." Senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than would like." It has been argued that the Supreme Court is in some respects "certainly a legislative body."
• Federal versus state power. There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison and Alexander Hamilton argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, others argue that expansive federal power is good and consistent with the Framers' wishes. The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005. Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Justice Alito said congressional authority under the Commerce Clause is "quite broad." Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the Court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be "laboratories" of democracy. One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."
• Judicial interference in political disputes. Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals. Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called "political questions."
• Failing to protect individual rights. Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery; Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal; Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights. A student criticized a 1988 ruling that allowed school officials "to block publication of a student article in the high school newspaper." Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver's licenses, especially poor and minority voters", according to one report. Senator Al Franken criticized the Court for "eroding individual rights." However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.
• Supreme Court has too much power. This criticism is related to complaints about judicial activism. George Will wrote that the Court has an "increasingly central role in American governance." It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009. A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch. Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis". Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."
• Courts are poor check on executive power. British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to wend their way through the system, their ability to restrain the other two branches is severely weakened.
• Not choosing enough cases to review. Senator Arlen Specter said the Court should "decide more cases." On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court hears now is smaller today than when he first joined the Supreme Court, he also stated that he has not changed his standards for deciding whether to review a case, nor does he believe his colleagues have changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.
• Secretive proceedings. The Court has been criticized for keeping its deliberations hidden from public view. Its inner workings are difficult for reporters to cover, like a closed "cartel", only revealing itself through "public events and printed releases, with nothing about its inner workings", according to a review of Jeffrey Toobin's expose The Nine: Inside the Secret World of the Supreme Court. The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives." Larry Sabato complains about the Court's "insularity." A Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised. In recent years, many justices have appeared on television, written books, and made public statements to journalists. In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Lyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution, with only the justices' private conferences being inaccessible to others. In October 2010, the Court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they take place.
• Creating a culture of legal intimidation. Critic Philip K. Howard in The Death of Common Sense and Life Without Lawyers criticized the Court for promoting a culture in which "law is wielded as a weapon of intimidation rather than as an instrument of protection." It leads to "a nation paralyzed by fear, unwilling to assume responsibility, both overly reliant on authority and distrustful of it." Howard deplores a legal culture in which the "rights" of "whoever might disagree" have trumped common sense. Specifically, Howard criticized the Earl Warren court for too much "sympathy for the little man." He criticized the Conley v. Gibson decision for opening "the floodgates to abusive litigation."
• Lifetime tenure. Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day." Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity. James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." Proposals to solve these problems include term limits for justices, as proposed by Levinson and Sabato as well as a mandatory retirement age proposed by Richard Epstein. However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."