The United States Does Not Need An All-Powerful Supreme Court
Many other nations get along just fine without judicial review.
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Last week, ProPublica reported that Supreme Court Justice Samuel Alito had received an all-expenses paid fishing trip from billionaire hedge fund manager Paul Singer. Alito never disclosed the trip, nor did he recuse himself from any of the ten cases Singer’s hedge fund had before the Supreme Court, the most recent of which awarded the company $2.4 billion. With this report coming just months after it was revealed Justice Clarence Thomas had a similar inappropriate relationship with billionaire Harlan Crowe, there is an increasing public appetite to curb the Supreme Court’s unchecked power, either through reform or oversight.
Following the overturning of Roe last summer, a strong plurality of Americans approved of significant reforms to the Court’s operations and procedures, a number that is sure to have grown given the recent revelations. 62% of Americans support judicial term limits, 45% support Court expansion, 60% favor age limits on Justices, and 69% want a binding code of ethics placed on the Justices, with the ability to impeach should they violate it.
While I welcome these reforms, I fear they are not enough to protect the democratic rights of Americans. As recent developments have shown, colossal wealth breads colossal corruption. And as the nine unelected members of the Supreme Court hold monarchical power, for the American elite who will have their interests weighed by the Court, showering Justices with lavish trips and gifts is certain to produce a favorable return on investment. As vast wealth is not disappearing from America anytime soon, the ideal reform is to return the Court to its original purpose, stripping it of its self-appointed power of judicial review, which the Court uses to determine if a law passed by Congress or acts signed by the President is “Constitutional.” This power, which is not established in the Constitution, was created by the Court in the 1803 case Marbury v. Madison. Since then, the Court has used judicial review as an ultimate veto over the other two branches of government, which are far more democratic. This is the reason the Court is able to overturn the President’s decision to cancel student debt, repeatedly strikes down the most meager forms of state-level gun control, and is how it would inevitably block any attempt at Medicare For All, should it be passed by Congress.
Whenever I propose eliminating judicial review, I’m met with a chorus of retorts that claim without it, the U.S. would descend into lawlessness. Putting aside that it is typically the most ardent “Originalists” and “Textualists” who argue we must continue acting outside the Constitution, the claim that the U.S. needs judicial review is provably false. Though most nations have some form of high court, many operate just fine without judicial review. In fact, those that don’t give the judiciary an all-powerful veto over the people tend to be much more democratic than the U.S.
In the United Kingdom, judicial review does not exist. The Supreme Court of the United Kingdom has the final say on all criminal and civil trials, but it can’t overturn legislation passed by Parliament. The Court can overrule secondary legislation, which are executive actions similar to executive orders in the U.S., but only if the Court believes the Prime Minister didn’t have the right to enforce the act. Instead of acting as a block on popular will, the Court affords Parliament the opportunity to act, ensuring the bulk of government power rests in the hands of the most democratic lever. This structure is due to the fact that in the English system, Parliament is the supreme body, as opposed to the three equal branches of the American system. As legislative bodies are far more democratic than unelected justices, the United States would be wise to borrow from our cousins across the pond.
Japan is an interesting case study, as the United States created its governmental structure following World War II. While the Supreme Court of Japan was granted the power of judicial review by its American architects, it has rarely been used. Between 1947 and 2012, the Court used it only eight times, an iota compared to the United States. The infrequent use is largely due to the supremacy of the Diet, Japan’s legislature. The Diet has a Cabinet Legislation Bureau, which reviews in-progress laws to ensure the body is only acting within its powers. This is a much more effective and democratic means of ensuring governments act in accordance with their constitutions, as, unlike Courts, legislators are accountable to the citizens. This system of concurring review also removes the uncertainty hanging over citizens, such as that currently plaguing Americans who are unsure if their student loans will be partially forgiven.
These are just two of the many prominent nations that operate without judicial review. Switzerland, Sweden, Luxembourg, Finland, and New Zealand all exist without judicial review, and the Constitution of the Netherlands explicitly prohibits it from being instituted. It’s no coincidence these nations are often cited as being the most democratic, far ahead of the United States. Where judicial review does exist outside the U.S., similar problems of corruption and the usurpation of democracy arise. After decades of preventing it, a 2008 constitutional amendment instituted judicial review in France. Just recently, the French Constitutional Council (the country’s high court) used the power to rule that President Emmanuel Macron could circumvent the legislature to raise the country’s pensions age, despite the mass protests against it.
As the mythos of America goes, our country is governed by three branches, each with checks over the other. Theoretically, this will lead to systemic balance, generating the optimal mixture of fairness, justice, and liberty. Unfortunately, this is just that — a mythos. When the rubber of our system meets the road of reality, we see what happens. The Supreme Court, which is unaccountable to the people but very susceptible to the influence of oligarchs, has anointed itself as the adjudicator of what the American people are allowed to do with their country. Stripping the Court of its power of judicial review — or rather, just ignoring it until that power is enshrined in the U.S. Constitution — would curb the Court’s corruption and bring the U.S. closer to a true democracy.
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Well put. It certainly does not seem as though there's the 3-way balance the founders intended. We are way, way too heavy on the judiciary today.
Good article overall! I do wonder what would happen if instead of SCOTUS being appointed, we the people elected 13 term-limited justices from the pool of 179 circuit judges, one for each circuit, and allowed 55% of Congress to veto any ruling. The originalists can still have their law experts on the bench, but we get our votes much more involved in the process as we do in some towns. But I like the idea of stripping out judicial review more.