Startling headlines have followed a series of recent, radical US Supreme Court judgments: “The US Supreme Court is turning the Constitution into a suicide pact”; “A new Supreme Court case is the biggest threat to US democracy since January 6”; and “Confidence in US Supreme Court sinks to historic low”. This latest raft of radically-charged decisions stands on the shoulders of a history of remarkable Supreme Court judicial activism stretching back over 200 years. Frankly, it is very hard to imagine any realistic means which could be applied to secure the transformation of this entrenched system of Judicial Supremacy.
At about the same time that the Supreme Court of the United States (SCOTUS) handed down its recent decision in Dobbs v Jackson Women’s Health Organisation, overturning its own 1973 decision on access to abortion, Roe v Wade, further controversial decisions were delivered striking down certain gun control measures and reducing environmental control powers. The SCOTUS is also now set to consider enhancing State Legislature election-rule powers.
Startling headlines have followed: “ The US Supreme Court is turning the Constitution into a suicide pact”; “The Supreme Court’s judicial activism will deepen cracks in America”; “A new Supreme Court case is the biggest threat to US democracy since January 6”; and “Confidence in US Supreme Court sinks to historic low”.
What needs to be recognised is that this latest raft of radically-charged decisions from the Supreme Court stands on the shoulders of a history of remarkable SCOTUS judicial activism stretching back over 200 years. It is important, also, to note that – putting political credentials to one side – the threshold legal quality required to secure elevation to the Supreme Court is very high indeed. The judgments of the court are, thus, not compromised by any recurring lack of serious legal expertise within its continuing membership.
In 1803, almost 220 years ago and less than 30 years after the founding of the USA on July 4, 1776, the SCOTUS, in Marbury v Madison encountered a case which raised the question of whether a certain Federal Law was compatible with the rather new US Constitution. The Supreme Court said, in essence, that surely someone has to make such decisions under the US political system and then decided that that someone must be the SCOTUS. No such decision-making power is directly conferred on the Supreme Court by the Constitution. This extraordinary power was, in 1803, effectively conferred on the SCOTUS by the SCOTUS.
No one seriously protested once the deed was done. Certainly not the new government led by President Jefferson (which had initially opposed the hearing) as the Supreme Court ultimately decided in its favour by striking down a particular provision as being unconstitutional. The primary consequence of this far-reaching decision was that the SCOTUS confirmed it had radical, sweeping powers to strike down (or endorse) laws passed by Federal and State legislatures according to their compatibility with the US Constitution. And it has been using these powers ever since.
In 1857 the Supreme Court, in the Dred Scott case, struck down the Federal legislative arrangement known as the Missouri Compromise – which placed certain limits on the practice of slavery – because it exceeded the Congressional legislative powers conferred by the Constitution. It followed that no African-American (like Dred Scott) whether enslaved or free, could access the rights of an American citizen. Moreover, since Scott was still considered the (enslaved) private property of his owners, this was property which, under the Constitution, could not be taken from its owners “without due process”.
This far-reaching decision further inflamed the ongoing, bitter debate about slavery. The American Civil War (1861 – 1865) followed soon after. Although that war led to the abolition of slavery in the US, segregation, a fundamentally grim modus vivendi evolved as the secessionist Southern States were re-absorbed into the US following the Reconstruction Era (1865 – 1877). Briefly, segregation adopted legal means (coupled with brutal extra-judicial enforcement) to subvert the normal civil rights of African-Americans leaving them as separated, second-class citizens. These pitiful arrangements were eventually brought before the Supreme Court for consideration in the case of Plessy v Ferguson, decided in 1896. The SCOTUS, found that the relevant racial segregation laws did not violate the US Constitution, provided the separate facilities provided for each race were (ostensibly) equal: this became known as the separate but equal doctrine.
The Civil War energised industrial innovation and development. The ideal of the Jeffersonian agrarian, American Republic gave way to a rapidly industrialising United States. This, in turn, drove the enactment of new legislation at the State level aimed at controlling grave examples of labour exploitation. This was non-too-pleasing within the ranks of the rising captains of industry. Soon enough, they sought assistance from the Supreme Court. In the Lochner case, in 1905, the SCOTUS struck down a New York State law setting maximum working hours for bakers, because it interfered with the individual right of contract. This was found to be in breach of the constitutional protection of due process (see Dred Scott, above).
In 1936, President Roosevelt won a sweeping re-election victory. He proposed adding additional judges to the Supreme Court in order, inter alia, to put an end to the impediments to fair labour laws created by the Lochner doctrine. The Constitution did not prohibit this plan to increase the number of Supreme Court judges. However, in 1937, the SCOTUS itself basically reversed its adherence to the Lochner reasoning (which had become known as “substantive due process”) in the West Coast Hotel case.
In a series of cases decided by the SCOTUS dating from 1919 (Schenck v United States) until 1951 (Dennis v. United States) the court endorsed the constitutional validity of an array of swingeing US national security laws (including the Espionage Act, 1917, Sedition Act 1918 and Smith Act, 1940). The First Amendment – protecting free speech – failed to provide any effective defence for those charged in these cases. The First Amendment was, in due course, accorded greater weight. The SCOTUS began to modify its established, robust endorsement of national security laws in 1957 (Yates v. United States). In 1969, the Supreme Court in Brandenburg v Ohio, essentially confirmed that the SCOTUS doctrines which had readily allowed free speech arguments to be trumped by national security concerns, no longer applied.
This pattern, where the SCOTUS takes one strong view and then changes direction later, sometimes drastically, can also be seen in how it has handled arguments seeking First Amendment protection for commercial advertising or corporate free speech. In 1942, in Valentine v Chrestensen, the court, in a short blunt judgment, said that the Constitution imposed no restraint on the regulation by legislation of purely commercial advertising. By 2011, however, in the Sorrell case, the court placed the protection of commercial free speech almost on a par with the protection given to individual political free speech. One leading journal article in 2012 highlighted, “the Incoherence of Sorrell v IMS”.
The SCOTUS is also well known for a series of judgments after the Second World War endorsing the protection of various civil rights. In 1954, the court finally confirmed, in Brown v Board of Education, that a part of its separate but equal doctrine was ill-founded: racial segregation in public schools was declared to be unconstitutional. Another landmark civil rights case, New York Times v Sullivan, drastically reduced the scope for defamation actions against the media in 1964. This significantly magnified the impact of the freedom of the press provision in the First Amendment. These and other related decisions endorsing the expanded constitutional protection of civil rights are widely regarded as being particularly worthy. There is a convincing case that they denote an admirable chapter in the history of the SCOTUS. At the same time, they also provided further fundamental confirmation of just how powerful the Supreme Court is.
Professor Albert Venn Dicey, the 19th century doyen of constitutional scholars in the UK, was a well-informed observer of how the American judicial system had contributed positively to advanced legal understanding within the common law world. Dicey was adamant, however, that one essence of the US system – its long-established tolerance of a remarkable level of Judicial Supremacy – was entirely unsuitable for the UK. Dicey was all in favour of an independent judicial system but seriously concerned about the harm that could flow from an over-mighty judiciary. This is the primary concern which is addressed by his powerful arguments supporting the fundamental doctrine of Parliamentary Supremacy within the unwritten UK Constitution.
The narrative above confirms that, although the recent drastic rulings applied by the SCOTUS are conspicuously reshaping the political-social fabric of the US, this is not some sort of novel, judicial experience for America. This is, rather, the latest iteration of what follows when an entrenched, superior judicial organ exercises the remarkably magnified powers it enjoys. It is fair to draw attention to the politically brazen nature of the SCOTUS appointments secured during the Trump Presidency. But the operational parameters of this selection process are a product of the way that the US system for selecting such judges has evolved under governments from both sides of the aisle. The formal rules governing such appointments are still complied with.
The stakes today are higher than ever. First, the US is now arguably more politically polarised than at any time since the Civil War. Next, the ultimate prize – gaining access to the immense powers of the SCOTUS – presents an unparalleled opportunity to reshape key aspects of the American political-legal landscape. In 1953, Jackson J. concisely explained the gist of why the Supreme Court is so powerful. In Brown v Allen he observed that: “We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final.”
What can be done? The severe but candid answer is very little. Finding a fix for some of these otherwise unyielding problems by using the mechanism to realise constitutional change is an unthinkably difficult option. Trying to appoint additional judges to achieve greater (political) balance on the court is hardly much easier. Both major parties, and especially the Republican Party, retain reasons for favouring the retention of the long-established, forbidding filibuster-rules which apply in the Senate and which, in brief, stipulate the need for super-majorities to pass certain key laws. Moreover, even if such hurdles could be overcome, we know that the SCOTUS judicial appointment process is now adamantly politicised. This means that, in due course, further balancing, by adding still more judges, would likely be sought.
The American Constitution is a remarkable and influential document, which has inspired millions of people worldwide. Nevertheless, the US today is visibly held hostage by its own Constitution and a range of deeply entrenched political protocols which shape America’s basic governance. There looks to be no choice but to do as America has done for over two centuries: accept the consequences – bad and good – of having created an entrenched, immensely powerful, truly radical Supreme Court. Which brings to mind an observation offered some years ago, about Mao’s Mausoleum in Tiananmen Square: If you did not have it, you would never build it. But once you have it, you are destined to live with it forever.
Richard Cullen is an Adjunct Professor in the Faculty of Law at the University of Hong Kong. He was previously a Professor in the Department of Business Law and Taxation at Monash University in Melbourne, Australia.
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