Page:EO 14023 Commission Final Report.pdf/158



Many observers view the judiciary and especially the Supreme Court as vital to the preservation of individual rights, democracy, federalism, and other constitutional values. On this account, the Court serves as an important counterweight to majoritarian impulses, safeguards the Constitution, and helps ensure the rule of law. But others argue that the Supreme Court has exerted too much power in our system of constitutional governance by interfering with or taking control of matters that should be resolved by the elected branches and the political process. Under this view, the Court has emerged as an obstacle to the realization of important social goals and undermined the ability of Congress and other political actors to protect rights.

Proposals to disempower the Court generally rest on two interrelated assumptions. First, Court rulings that statutes violate the Constitution typically require exercising judgment about the meaning of the Constitution, over which reasonable people might disagree, as is often illustrated by divisions among the Justices themselves in constitutional cases. Second, in cases of reasonable disagreement over whether a law comports with the Constitution, principles of democracy necessitate that Congress and the executive branch have opportunities to check the judgments of an unelected judiciary and to advance their own views about what the Constitution requires. In the view of some proponents of judicial disempowerment, the modern Supreme Court has injected itself into spheres appropriately left to democratic argument and resolution—for example, by invalidating laws that prohibit or restrict abortion or legislation designed to protect voting rights. For these critics, the Court’s fundamentally “countermajoritarian” character is in tension with the basic commitments of a democracy; an unelected judiciary, in this view, acts undemocratically when it invalidates the acts of democratically elected representative bodies. For some, the problem is also that Supreme Court Justices are nearly always drawn from the elite and are therefore insufficiently representative of the population as a whole.

Those who critique the Supreme Court’s power emphasize that when the Court acts to invalidate statutes, its decisions “have an unusually high degree of finality or ‘strength’[] by global standards.” This high degree of finality derives in part from the Court’s approach to judicial review, known as “judicial supremacy.” That is, the Court has held that it has the last word on constitutional interpretation and that its decisions bind not only the parties in a particular case but also future action by the President, Congress, and the states. The Court has