Is the Supreme Court the ‘sick man’ of the Constitution?

(credit: Flickr)
(credit: Flickr)

(credit: Flickr)

“A remedy is needed that will restore health to the sick man in our constitutional system,” said Senator Ted Cruz, shortly after the Supreme Court’s rulings on Obamacare and marriage equality in June.

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” President Barack Obama warned after Citizens United in 2010.

“Many of our politicians have surrendered to the false god of judicial supremacy, which would allow black-robed and unelected judges the power to make law as well as enforce it,” declared former Arkansas Governor Mike Huckabee, following the legalization of gay marriage.

“There should be a real outcry against this kind of decision. And there will be many more now,” former Secretary of State Hillary Clinton proclaimed, not long after Hobby Lobby last year.

It seems there is little love for our third branch of our government.

An increasing number of prominent politicians in both parties are bashing the Supreme Court on a regular basis. They switch so easily from condemning the judicial activism of these “black-robed and unelected judges” to praising the wisdom of said judges.

The numbers bear out this growing distaste for the Court. According to a C-Span/Penn Schoen Berland poll released on July 21, 66 percent of Americans believe the Supreme Court is as partisan as Congress and not fulfilling its proper constitutional duty. 76 percent believe that the Supreme Court should allow TV cameras in their chambers during oral arguments, in order to make the Court more transparent. 60 percent disagreed with the lifetime appointment of Justices to the Supreme Court; 79 percent were open to 18-year terms.

Another poll, released by Reuters/Ipsos on July 20, showed that 63.4 percent of Democrats, 63 percent of independents, and 72 percent of Republicans said they favored a 10-year term for the Justices. 54 percent of Democrats and 50 percent of Republicans looked favorably on a system that allowed justices to be elected.

These numbers are impressive. They cut across the political spectrum. Approval of the Court may ebb and flow with the political tides, but the idea of reform remains a consistent trend.

How Americans would reform the Court is another matter entirely. Proposals range from Sen. Cruz’s election retention proposal to limiting the time served as a Justice anywhere from eight to 18 years. Such divisions limit the likelihood of reform any time soon.

As the calls for reform mount, it is tempting to believe the Court is, as Sen. Cruz says, the “sick man” of the Constitution. After all, the Court is not directly accountable to voters, yet its decisions can affect policies for generations. The Court’s decisions are difficult to defy or change, yet the Court is not infallible. Its very nature seems to fly in the face of democratic principles.

But it is important to remember the nature of the Supreme Court. It is not a “popular” branch of government; it is an insulated branch, designed to serve the Constitution. The Court must be able to make unpopular decisions. It must be willing to do what is right without checking poll numbers.

As such, popularity should not be the Court’s aim. The Court has made many unpopular decisions in the past that have endured as positive legacies, like desegregation and the right to privacy. And many decisions that were popular in their day, like Plessy v. Ferguson, have become bitter blots on the Court’s honor.

The Supreme Court has a unique and important role to play in the separation of powers. That role should be remembered, even when we don’t like what it says.

Louis Gentilucci is an intern at the National Constitution Center.

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