The Supreme Court: The Least Dangerous Branch?

Lady Justice isolated on Front Columns of the Supreme Court of U.S. background

Commentary by Emma Feldmeier, Wyoming H.S.

Shutterstock illustration: Lady Justice isolated on front columns of the U.S. Supreme Court

In Federalist No. 78, Alexander Hamilton predicted the judiciary would be the “least dangerous branch” of government, since it has “no influence over either the sword or the purse.” By contrast, the executive branch has the power of the sword, or to command the army; and the legislative branch has the power of the purse, or to tax and manage the nation’s money. (If you’re a little fuzzy on the three branches and how they work, here’s a refresher video on our YouTube channel.) Despite Hamilton’s claim regarding the judicial branch, the Supreme Court has shown considerable power over our lives by interpreting our laws, setting precedents and sometimes overturning them–begging the question, is it really the least dangerous branch?

Last week, the nine Supreme Court Justices reconvened in Washington after the summer recess. The Court’s new term, which will run to the end of June, will see controversial topics such as abortion, the Second Amendment (a.k.a. gun rights), and religious freedom be discussed and argued before the justices. Through these cases we will see the effects of the new makeup of the court play out. Many journalists, legal scholars, and others who watch the judiciary closely are expressing concern about the court’s growing political divide, and an increased distrust towards the body by the American people. According to a recent Gallup poll, the approval ratings of the Supreme Court have declined dramatically, with only 40 percent of the American population approving of the Court and their actions.

https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx

This graph shows the fluctuations of Supreme Court approval ratings among the American population since 2001. As you can see, the current approval rating is at the lowest it has ever been in the past two decades.

As mentioned before, some observers trace this growing distrust to the idea that the Supreme Court has become too partisan. These concerns grew during the last administration, when President Donald Trump appointed three very conservative justices to the Supreme Court, disrupting what had been a delicate balance. This shift was on full display this summer, as the Supreme Court, in a 5-4 “shadow docket” decision, allowed the Texas abortion law to go into place. This law reflects a conservative stance toward reproductive rights, one held by many of the Republican-nominated justices, who now outnumber the more progressive, Democrat-appointed justices, 6-3. 

Justice Breyer and the great drama of the US Supreme Court | Politics | Al  Jazeera

In its formation, the Supreme Court was intended to be a body uncorrupted by partisanship, a body of neutrality and sound judgement, one that could be trusted to interpret the nation’s laws. In fact, justices are appointed to the Court for life in an effort to ensure a certain degree of neutrality: The idea is that, in not having to worry about the prospects of reelection, the justices would act in the best interests of the people rather than their own careers, and wouldn’t be influenced as much by the divisive public sphere. But how does that honorable intention from the past play out today? Does a lifetime appointment still make sense, when justices are joining the court at younger ages (Amy Coney Barrett is just 49), living longer, and exerting judicial power over the nation for decades? What about the size of the Supreme Court: should there be more justices, or fewer? And should the people have a more direct voice in choosing, approving, or even removing them? As our society evolves, so must our democratic government, to maintain balance and stability and to ensure fair representation.

One of the most polarizing topics the Supreme Court will address this term is that of abortion and reproductive rights. Many states have implemented or are in the process of implementing restrictions on abortion. For example, the Texas ban enables members of the public to sue abortion providers, or anyone who helps a person obtain an abortion after the very earliest stage of pregnancy, for $10,000. Many health organizations, such as Planned Parenthood, are challenging these laws, while those seeking to end their pregnancies face chronic uncertainty, economic hardship, and risks to their own health.

An upcoming case having to do with a Mississippi abortion law, called Dobbs v. Jackson Women’s Health Organization, is on the Court’s docket, slated to be argued December 1. This law bans abortions after 15 weeks of pregnacy, well before the fetus reaches the threshhold of viability (is able to survive outside the womb). The Supreme Court will be challenged with rejecting or affirming the constitutionality of this law, with the district courts having rejected it. 

These abortion restrictions passed by state legislatures in Texas and Mississippi, with many more states (Ohio included) standing in line to follow, threaten the precedent set in 1973 by Roe v. Wade. That landmark decision deemed government restrictions on reproductive rights, specifically abortion, unconstitutional. The prospect of Roe v. Wade being overturned strikes fear in many across the nation. This decision on abortion and reproductive rights will have a significant impact on society, as it will either reinforce Roe v. Wade and the belief that individuals who become pregnant should have control over their bodies, or it will overturn Roe v. Wade and open the door for more states to implement restrictions on abortion. Here in our own region we’re already seeing action around this issue, with conservative state and local officials appealing to their pro-life base, and others standing up for abortion access. 

The Supreme Court is a powerful body. Its decisions, for better or worse, can have a profound impact on our laws and our lives, our families and our communities. As this new Supreme Court term is getting underway, be on the lookout for cases such as Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association v. Bruen, and Carson v. Makin, all cases that relate to hot-button political issues affecting young people (abortion, gun control, and public funds for religious schools, respectively). Listen to the arguments, read the decisions, see the real-world results, and decide for yourself: Was Hamilton right?

To learn more about this Supreme Court’s term and the issues they will be tackling, check out these sources:

https://www.cnn.com/2021/10/03/politics/supreme-court-term-opener/index.html

https://www.npr.org/2021/10/04/1041713663/the-supreme-courts-conservatives-cook-up-a-stew-of-abortion-guns-religion-and-mo

https://www.nytimes.com/topic/organization/us-supreme-court

https://www.teenvogue.com/story/constitutional-originalism-supreme-court

In addition, the official Supreme Court website offers a wealth of information, including recorded audios of arguments made before the justices. Here’s a link to the argument recordings:

https://www.supremecourt.gov/oral_arguments/argument_audio/2021

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