Political Process
The role of the Supreme Court in American government must be understood with reference to the larger political system. The unique features of the American political system make it possible for the Court to play a vital role in the settlement of political issues. In turn, the Court is profoundly influenced by the political process, which guides and shapes its decisions and which can, at times, set clear limits to the Court's political independence.
Nature of American Politics
The political power of the Supreme Court is a product of the constitutional structure. In Marbury v. Madison (1803) and Fletcher v. Peck (1810), the Court established its power to interpret and enforce the Constitution against the encroachments of the federal and state governments. This power, known as judicial review, derives in part from a limited, written constitution. Such a constitution, as Alexander Hamilton stated in the The Federalist no. 78, “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”
The theoretical rationale for judicial review does not, however, explain sufficiently the Court's historical success in exercising that power. A full explanation of the Court's extraordinary political power must probe more deeply into the nature of the American political system.
The Court's power of judicial review is exercised against the backdrop of a broad liberal tradition in America, exemplified by widespread acceptance of what the political scientist Louis Hartz called the “Lockian [sic] creed.” The existence of a political consensus accepting almost without question the doctrines of capitalism, individualism, religious toleration, and, in some form at least, equality, makes it possible for the American political system to redirect major political issues to the courts. Judicial review, as Hartz pointed out, would have been impossible in the United States without this foundation of agreement, since “the removal of high policy to the realm of adjudication implies a prior recognition of the principles to be legally interpreted” (The Liberal Tradition in America, 1955, p. 9).
This insight, of course, does not deny the existence of conflict, intolerance, discrimination, and disagreement in American history, although the level of agreement on fundamental issues has probably been greater in the United States than in European nations. But the dynamics of American politics have tended to suppress such conflicts. For example, the structure of the American two‐party system discourages the formation of third parties expressing views contrary to the prevailing consensus, by providing such parties no representation in Congress unless they obtain a plurality in any given congressional district (see Party System; Political Parties). Similarly, the rules governing presidential elections encourage the selection of candidates with broad appeal to the center of American politics, while virtually freezing out fringe interests from any sort of coalition‐building role.
The emergence of truly serious conflicts over the nature of the American regime—as, for example, in the Civil War, or during the New Deal period—has resulted in serious disruptions to the normal patterns of American politics. During such periods—known as “critical realignments”—American political debate has been unusually intense; the divisions between the major parties have increased; third parties have arisen and gained power; and there have been fundamental changes in public policy. When the Lockean consensus is itself called into question and political debate revolves around fundamental questions, the power of the Supreme Court has been greatly limited. Thus the Court was unable either to settle the Civil War crisis through its decision in Dred Scott v. Sandford (1857) or to halt the New Deal in 1935 and 1936.
Under normal circumstances, however, the Court has great latitude on a wide range of public‐policy issues. This freedom of action can be traced to three factors. First, the Court enjoys widespread public legitimacy. Second, it operates within a system of separated powers, as one of the three coequal branches of the federal government rather than as a subordinate branch (see Separation of Powers). Finally, the Court benefits from the doctrine of federalism, which divides power between the national government—of which the Court is a part—and the states.
No Court could exercise significant political power without widespread political legitimacy. And whatever their views on particular Court decisions, Americans seem to have accepted the idea of judicial review as a legitimate power of the Supreme Court. Even the most notorious and unpopular Supreme Court decisions have not altered this basic acceptance of the idea of judicial review. Abraham Lincoln, for example, although a vehement critic of the Dred Scott decision, never challenged the idea of judicial review in the abstract; nor did Franklin D. Roosevelt, who also faced strong judicial opposition. Even the extraordinary controversies of the modern era—over such Supreme Court decisions as abortion, school prayer, and busing (see Desegregation Remedies)—have not shaken the Court's political legitimacy. Public confidence in the Court remains high, and the Court ranks near the top when compared with other institutions. Researchers have found a high degree of support for the Court not only among those who disagree vehemently with particular decisions, but also among Americans who pay little or no attention to its work.
The separation of powers also contributes to the Supreme Court's effectiveness. Any attempt to “curb” the Court by legislation requires, in general, cooperation between the executive and legislative branches (in theory, of course, Congress can act alone by overriding a presidential veto, but such action requires two‐thirds of each house and, practically speaking, occurs only under extraordinary circumstances). In the modern era, where the White House has often been controlled by one political party and Congress by the other—and where Congress has been closely divided in any event—such cooperation is especially rare. Even if the president and a majority of both Houses of Congress are opposed to a particular Court decision, it is usually possible for the minority to kill anti‐Court legislation—by filibustering, holding up bills in committee, or using other parliamentary maneuvers (see Court Curbing).
Finally, the Court's power is heightened by the federal system, which divides power between the national and state governments. The Court, of course, is a constituent part of the national government; historically, many of its most important decisions have been directed toward the states, and have enjoyed the full support of the other branches of the national government. Certainly this is true of most of the civil rights decisions of the 1950s and 1960s, in which the Court's decisions were backed up by such federal legislation as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. It is no coincidence that, historically, the most vehement critics of the Supreme Court have been those associated with support for states' rights or with opposition to the broad powers of the national government.
The federal system also increases the difficulty of curbing the Supreme Court by amending the Constitution. Constitutional amendments require the approval of two‐thirds of each branch of Congress and of three‐fourths of the states (an alternative process, which would involve a constitutional convention, has never been used). The amendments process thus requires cooperation between the national government and an overwhelming majority of state governments—a degree of cooperation that is an extremely difficult process and that is almost impossible to achieve except in the most uncontroversial circumstances.
Supreme Court and Federal Supremacy
The overwhelming fact of the Supreme Court's political role over the past two hundred years has been its commitment to increasing and validating the power of the national government. This commitment has not been absolute; at key moments—including over the past decade—the Court has turned its back on the federal government and sided with the states in key cases. Historical examples include some of the most important and dramatic episodes in American history—most notably, the Dred Scott case and the conflict between the Court and Franklin D. Roosevelt in the New Deal. Still, these events (and a few others) have been the exceptions; the bulk of the Court's energy has been directed toward promoting the constitutional powers of the federal government.
The reasons for the Supreme Court's historical deference to the exercise of federal power are clear. The justices are appointed by a political process that involves nomination by the president and confirmation by the Senate; they tend to reflect, therefore, the political views of those who control those institutions. When, on occasion, significant disagreements have arisen between the Court and the political branches, the political process has provided a quick corrective. By the appointment of new justices, or on rare occasions through constitutional amendment, any serious disagreements between the Court and the political branches have been rapidly resolved (see Reversals of Court Decisions by Amendment).
The appointments process, of course, does not ensure a direct match between the policy views of the justices and those of the political branches. For one thing, the best presidents can hope for is that the justices they appoint agree in general with their political philosophy; it would be impossible to find an appointee whose views on every issue before the Court were acceptable to the president. For another, the justices typically serve far longer than the politicians who appoint them, and they are required to make decisions on issues never contemplated during the appointments process (see Selection of Justices). Justices Hugo Black and William O. Douglas, for example, were appointed by Franklin D. Roosevelt but served into the 1970s, while Chief Justice William Renhquist has served since his service on the Court began in 1972. Moreover, as many presidents have discovered, justices once appointed often take on a certain degree of independence: “Packing the Supreme Court simply can't be done,” Harry Truman once said. “I've tried and it won't work.” The problem, Truman declared, is that “whenever you put a man on the Supreme Court he ceases to be your friend” (quoted in David M. O'Brien, Storm Center: The Supreme Court in American Politics, 1986, p. 81). Finally, many presidents have been relatively unconcerned with finding an exact fit between themselves and their judicial appointments; Herbert Hoover, for example, placed on the Court such diverse jurists as Owen Roberts, Charles Evans Hughes, and Benjamin Cardozo.
Nevertheless, when fundamental differences between the Court and the political branches do arise, they have frequently been resolved through the appointments process. A president determined to influence the Court's decisions on a particular issue or on a set of closely related issues can usually succeed. Whatever their views on other matters, for example, all of Franklin Roosevelt's appointees were committed New Dealers. The Roosevelt Court was divided over civil liberties and civil rights issues, but on the key question of the federal government's role in supervising the national economy the justices spoke as one with the president.
On the fundamental issues that shape a particular era of American politics, therefore, the Supreme Court is rarely out of sync with the legislative and executive branches. The Court has seldom been able to frustrate a federal policy of overriding importance, at least in the long run. In resolving struggles for power between the states and the national government, the Court has sided overwhelmingly with the national government.
Marshall Court decisions such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) established the foundations of broad congressional authority under the Constitution, especially in the area of interstate and foreign commerce. Furthermore, the Court also made it clear that any valid federal legislation would be given effect even if in direct conflict with the police powers of the states. The Taney Court, likewise, though best known for Dred Scott, did its part to advance the interests of the national government. While it did sustain a variety of state regulations of interstate commerce in the absence of relevant federal legislation, it did not waver from the Marshall Court's broad definition of the federal commerce power. Even on slavery matters the Taney Court generally stayed on the sidelines, deferring to Congress's attempts to forge a compromise—until, of course, Dred Scott.
After 1860, the Court reaffirmed national power. The Prize Cases, decided in 1863, provided critical support for Lincoln's war policies. Although Reconstruction brought its share of conflicts between the Court and Congress, by 1870 the Court was again at work creating a constitutional environment favorable to the national government. The justices did invalidate a number of key federal laws in the 1870–1930 period and weakened others through interpretation, but it would be a mistake to characterize the Court in this period as hostile to the exercise of national power. Such a view results from reading the Court's opposition to the New Deal back into the prior decades, emphasizing those cases that struck down federal authority and neglecting those that sustained that power. The Court held that the federal government could not regulate child labor, for example, but it also upheld virtually every piece of federal railroad legislation brought before it; and while it at times prohibited Congress from regulating local manufacturing, it also permitted regulation of slaughterhouses, which were considered to be a part of the “stream” of commerce. The Court also advanced national power by overturning many state laws that interfered with congressional regulations of interstate commerce. Taken together these decisions expanded greatly the federal government's role in American economic life.
The New Deal cases, to be sure, are a critical exception to the general rule. In 1935 and 1936 the Court made a stand against Roosevelt's programs, striking down no fewer than fourteen pieces of federal legislation. The Court's opposition to the New Deal, however vehement, did not last long; by 1937, the Court capitulated and ratified Roosevelt's broad expansion of federal power.
In recent years the justices have handed down anti‐nationalist decisions in several important cases. Viewed in historical terms, however, the modern Court remains strongly supportive of federal power. The Court continues to allow Congress broad, though not unlimited, discretion in using the Commerce Clause to oversee the economy and for other purposes, permitting widespread federal regulation of banking, industry, labor relations, working conditions, civil rights, the environment, and public health. With rare exceptions (including perhaps the 2004 decisions involving the rights of terrorist suspects), the justices have declined to interfere in foreign policy even when substantial constitutional questions have arisen. The Court has permitted broad congressional interpretations of the enforcement provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments, though with some exceptions. And while the modern Court has not been reluctant to exercise its power of judicial review against specific provisions of federal law, it has rarely if ever attempted to interfere with the broad policy agendas of the political branches, or backed the states in a major policy dispute with the federal government.
There are three areas in particular where the Rehnquist Court has trimmed back the exercise of federal power. First, the Court has ruled in two cases since 1994 that Congress exceeded its power under the Commerce Clause (see Lopez, United States v. and Morrison, United States v.). Second, it has ruled in a series of cases—most notably United States v. Printz (1997)—that Congress cannot “conscript” the states and force them to carry out national policies. Finally, on several occasions (though not consistently) the Court has invoked the Eleventh Amendment and refused to allow Congress to authorize lawsuits against the states. All of these cases suggest the Court's renewed interest in policing the boundaries of power in the federal system, but even taken together they do not add up to a wholesale restructuring of power between Congress and the states. Most important, the Court has not contracted its own power under the Constitution, and in fact has expanded its power in several ways. Because the Court is a constituent part of the national government, and because in the long run the justices are likely to align themselves with the interests of those who control the other two branches, it seems unlikely that the Court will permanently or fundamentally reduce the power of the national government.
Supreme Court and National Policy
That the Supreme Court has rarely challenged the broad outlines of national policy does not mean, of course, that its role in national politics is unimportant. Throughout most of its history, the Supreme Court shied away from attempts to resolve institutional struggles between Congress and the executive branch. Instead, the Court has permitted the other branches to resolve such disputes between themselves. Not since the New Deal, for example, has the Court interfered with congressional delegation of power to the president or the administrative bureaucracy. Nor, in general, has the Court objected to the evolution of various techniques of congressional oversight of the executive branch.
Beginning in the 1980s, however, the Court has taken a more aggressive stance with regard to overseeing the relationship between Congress and the executive branch. In Immigration and Naturalization Service v. Chadha (1983), for example, it invalidated the so‐called legislative veto, a device by which Congress delegates power to the executive branch but reserves to itself the opportunity to review and veto the subsequent exercise of that power. The Chadha decision called into question more than two hundred different laws and portended a major shift in the relationship between Congress and the president. In fact, however, Congress and the White House have largely ignored the implications of Chadha and have continued to enact and apply the legislative veto in a wide variety of contexts. In later cases the Court tried to limit congressional attempts to delegate power to officials under its direct or indirect control, holding unconstitutional the enforcement provisions of the Gramm‐Rudman‐Hollings Act, which delegated executive power to the controller general, an official who could be fired, the Court said, only by Congress.
More recent cases seem to have moved toward a mixed pattern of judicial interference and noninterference in separation of powers matters. Thus the Court upheld the constitutionality of the Independent Counsel Act and permitted broad delegation of power over criminal sentencing policy to the federal judiciary. But in Clinton v. City of New York (1998), it struck down the Line Item Veto Act, under which Congress sought to give the president the authority to overturn individual budget items without vetoing an entire appropriations act.
In recent decades the Supreme Court has been extremely active in defending its own power, and the power of the federal judiciary in general, from encroachments by the executive or legislative branches. In City of Boerne v. Flores (1997), for example, the Court ruled that congressional enforcement of the Fourteenth Amendment could not extend to “rights” declared by Congress but not recognized by the Supreme Court. In a series of decisions since United States v. Nixon (1974), the Court has vigorously defended the authority of the judicial branch against claims of executive privilege and immunity. Thus in Clinton v. Jones (1997), the justices denied President Bill Clinton's request that a civil case against him be postponed until after he had left the White House.
As these cases suggest, the Supreme Court's power with respect to the other two branches has grown perceptively in recent decades. The reasons for this are clear. First, the Court has taken advantage of the struggles between the Congress and the White House, as well as the close division of power within Congress, to increase its freedom of action. When Congress and the executive branch have been unable to reach agreement, the Court has been more than willing to step into the void. At other times, the Court has taken its cues from Congress or the president and has made decisions that remained in force because one or the other of the branches refused to cooperate in overturning them.
Frequently, in fact, the Court's decisions have succeeded precisely because the Court allied itself with one of the other branches to accomplish an objective opposed by the third branch. The Reagan and Bush administrations' semisuccessful attempts to limit civil rights laws passed by Congress stand as one example. More commonly, Congress has “ducked” controversial issues to the Court, allowing the Court to make a decision that, though backed privately by congressmen, would be politically difficult to support in public. One recent example involves Congress's attempt to reverse the Court's 1989 decision in Texas v. Johnson prohibiting restrictions on flagburning. Congress denounced the decision and voted to reverse it by statute, but when that action was itself declared unconstitutional, no further action was taken.
Private litigants too have discovered that they can frequently use the Supreme Court to accomplish objectives that would be impossible to achieve otherwise, usually because the political branches are unwilling to act. The civil rights movement set the standard in this regard, but a similar strategy has since been pursued by countless interest groups on both sides of the political spectrum, including pro‐choice and pro‐life groups, gay and lesbian rights groups, business interests, and environmental groups. Interest group strategies include direct sponsorship of cases and participation as friends of the Court. Again the pattern is familiar: once the Court acts, its decision can usually be sustained against attack by the other side, usually because one of the branches will stand at least tacitly on the side of the Court.
Supreme Court and the States
To the extent that constitutional conflicts have arisen between the states and the federal government, the Supreme Court has usually sided with the federal government. Throughout most of American history, however, the Court left the states relatively free to manage their internal affairs. Between 1890 and 1930 the Court did apply the Due Process Clause of the Fourteenth Amendment to nullify a number of state economic regulations, but even here the magnitude of the Court's interference is easily exaggerated (see Due Process, Substantive). Beginning in 1937, in any event, the Court abandoned its efforts to restrict the states' authority to regulate their internal economies, provided there was no substantial interference with interstate commerce. “The day is gone,” as Justice William O. Douglas wrote in Williamson v. Lee Optical (1955), “when this Court uses the Due Process Clause … [to] strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought” (p. 488).
Historically, three factors have limited the Court's interference with the internal affairs of the states. First, and most important, the Court did not apply the Bill of Rights to the states until the early years of the twentieth century. Until then the state regulation of the public health, welfare, safety, and morals was relatively free from federal interference (see Police Power).
Second, while the Supreme Court did at times enforce the Fourteenth Amendment's protections against racial discrimination, it did so with little enthusiasm. Such decisions, moreover, were far overshadowed by the Court's 1896 decision in Plessy v. Ferguson, which upheld racial segregation under the law. Finally, the Court's ability to supervise state activities, even had it been willing to do so, was hampered by a variety of technical constraints. The Eleventh Amendment limited the power of the federal courts to entertain suits against the states by individuals; other restrictions, imposed by the Court itself or by Congress, served to limit access to the federal courts.
Many of these circumstances changed in the twentieth century. The Supreme Court began to apply the provisions of the Bill of Rights, one by one, to the states (see Incorporation Doctrine). The process began with the application of the just compensation provision of the Fifth Amendment in Chicago, Burlington & Quincy Railroad Company v. Chicago (1897). Another early case was Gitlow v. New York (1925), in which the Court raised the possibility of the First Amendment's protection of freedom of speech. In the years that followed, virtually all the important elements of the Bill of Rights were enforced against the states. In addition, the Court began actively to push for an end to racial segregation and discrimination. Over the years, a variety of technical devices facilitated federal review of claims against the states and expanded the nature and efficacy of the remedies that could be applied by the courts.
The modern Court has firmly established its primary role as the protection of individual civil rights and civil liberties against state encroachment. The justices have invalidated state laws concerning contraception and abortion, obscenity, libel, school prayer, gay rights, and criminal procedure. Federal courts have taken active roles in the management of school systems, prisons, and mental hospitals in an effort to preserve and protect constitutional rights. The Supreme Court has steadfastly enforced the Equal Protection Clause, and has extended its coverage to cases involving gender, alienage, and illegitimacy (see Inheritance and Illegitimacy). The redirection of the Court's activities to the protection of individual rights was the great accomplishment of the Warren Court and was pursued no less vigorously by the Burger and Rehnquist Courts as well.
There have been a number of attempts in recent years to overturn controversial Supreme Court decisions. Most of these have failed because success would require either a constitutional amendment or action by both Congress and the White House. Both courses of action face formidable obstacles. Most importantly, Congress has shown little enthusiasm for reversing liberal Court decisions, while a succession of Republican presidents have blocked most attempts to reverse conservative decisions.
In the past few years, the appointment of conservative justices (as of 2004, only two of the nine justices were appointed by a Democratic president) has resulted in some contraction in the Supreme Court's interpretation of the various provisions of the Bill of Rights. In general, however, the Supreme Court continues to play a vigorous role in the supervision of state and local activities impacting civil rights and civil liberties. Modifications in existing Warren and Burger Court decisions have been incremental and piecemeal; only rarely has the Court reversed outright a key Warren or Burger Court decision, and never on a case of central importance.
Court and the Political Process, Writ Small
Besides its role in shaping American politics at the highest levels, the Supreme Court has also taken on many cases important to the working of the political system. The Court's involvement in such cases has increased greatly since its 1938 decision in United States v. Carolene Products; footnote four of that case declared explicitly that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” might be “subjected to more exacting judicial scrutiny than are most other types of legislation” (p. 152).
In 1944, for example, the Court in Smith v. Allwright overturned an all‐white primary rule adopted by the Texas Democratic convention itself. That decision overruled Grovey v. Townsend (1935), which had held that a political convention was a private, voluntary association and not an organ of the state. Relying on the Fourteenth Amendment, the Court now held that primary elections were part of a unitary electoral process authorized under the laws of the state and that the “statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the State in so far as it determines the participants in a primary election” (p. 663).
In the modern period the Court has extended its protection of the political process. In Harper v. Virginia State Board of Elections (1966), for example, the Court nullified a Virginia poll tax of $1.50 per person, to be paid as a precondition of voting. Justice Douglas, writing for the Court, held that such a tax violated the Equal Protection Clause because “wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the political process” (p. 668). In 1969, the Court struck down a New York statute restricting participation in school district elections only to those persons who either owned or leased real property in the district or who were the parents of children enrolled in the local public schools. Chief Justice Earl Warren held that the state's interest in restricting the franchise only to those “primarily interested” in school district elections was insufficient to override the constitutional presumption against ballot access restrictions. In the 1950s, the Court rejected a challenge to state literacy tests, though more recently it has outlawed obviously discriminatory practices in this area and has upheld congressional action banning literacy tests under the Voting Rights Act.
Other decisions involving the political process include a number of cases dealing with third‐party access to the ballot. The Court has steered a middle ground. In Williams v. Rhodes (1968), it rejected state schemes that virtually deny third‐party access, but in Jenness v. Fortson (1971), it permitted those that simply require “some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot” (p. 442). The Court has refused to allow states to require candidates to pay ballot‐access fees but has sustained laws limiting current holders of state offices from running for other elective offices.
At the same time, the Court has upheld congressional attempts to preserve and extend voting rights under the Fourteenth and Fifteenth Amendments. In two 1966 cases, South Carolina v. Katzenbach and Katzenbach v. Morgan, the justices sustained the Voting Rights Act of 1965, holding that Congress could use broad discretion in enforcing the Fifteenth Amendment, including the suspension of literacy tests. In 1970, the Court sustained two key provisions of the Voting Rights Act amendments of 1970, including the nationwide suspension of literacy tests; a maximum thirty‐day residency requirement in presidential elections; and the expansion of the franchise to eighteen‐year‐olds in federal elections. It balked, however, at a provision of the law granting eighteen‐year‐olds the right to vote in state elections. The latter holding was overruled by the adoption of the Twenty‐sixth Amendment in 1971.
The Court has also been generally supportive of congressional attempts to regulate election campaign contributions. In Buckley v. Valeo (1976), the Court sustained federal limitations on campaign contributions (a maximum of one thousand dollars per candidate per election, with an overall limit of twenty‐five thousand dollars by any contributor), along with provisions requiring disclosure of contributions by political campaigns and setting up a voluntary system of public financing for presidential elections. At the same time, however, the Court invalidated limitations on independent expenditures by individuals unrelated to a campaign, along with restrictions on the amount of his or her own money a candidate could contribute to a campaign and on the amount of money that could be spent, in total, by a campaign for political office. And in the 2003 case of McConnell v. Federal Election Commission, the Court upheld all the major provisions of the Bipartisan Campaign Reform Act of 2002—including restrictions on so‐called soft‐money contributions to political parties.
The Court, in summary, has greatly expanded both the franchise and ballot access in state and federal elections, directly through its own decisions and indirectly by sanctioning broad exercises of congressional power. Moreover, the Court's role in enlarging and opening up the political process includes a wide range of cases expanding the rights of free speech, free press, and free association (see Assembly and Association, Citizenship, Freedom of), and expanding the rights of African‐Americans, women, and other minorities in education and commerce. The effect of these decisions on the political process in the United States, while impossible to measure, has been significant.
The justices have also taken an active role in legislative reapportionments, particularly in overseeing the drawing of district boundaries to increase minority representation in Congress and the state legislatures. In a series of cases in the 1990s, the justices held that race could be a factor in redistricting decisions, but not the “predominant” factor—unless the government could meet the virtually impossible burden of overcoming the strict scrutiny test. Thus legislative districting plans that seek to increase minority representation through districts that are “bizarre in shape” and unrelated to geographic or political boundaries or local election precincts, will likely be held unconstitutional.
Another important case with direct bearing on the political process was U.S. Term Limits v. Thornton (1995), in which the Court struck down an Arkansas constitutional provision limiting U.S. representatives to no more than three terms. Neither Congress nor the states, the Court ruled, could “alter or add to” the Constitution's list of qualifications for members of the House of Representatives. Such a change could be implemented only by an amendment to the federal Constitution.
Judicial involvement in the electoral process reached a pinnacle in 2000, in Bush v. Gore. In a per curiam opinion, the Supreme Court invalidated a recount, imposed by the Florida Supreme Court, of presidential ballots in several Florida counties. The Court's decision was based on an expansive interpretation of voting rights under the Equal Protection Clause. In particular, voters had the right to have their votes counted equally, and not to be subjected to “arbitrary and disparate treatment” in the vote‐counting (or recounting) process. The implications of the Court's decision to the outcome of the 2000 presidential election were enormous, of course, but the implications of the decision to the future of voting rights law are less certain. It seems unlikely that the precise circumstances of the 2000 election will be repeated; and it is unclear whether the Court will build on Bush v. Gore to create a broadly enforceable right to equality in the vote‐casting and counting process.
Political Questions
The Court has traditionally shied away from so‐called political question cases. These involve issues that, for some reason, the Court feels are more appropriately decided by the “political branches”—that is, Congress or the president. The political question doctrine suffers from intellectual confusion and practical uncertainty and has been applied to several disparate types of cases. In any event, the Supreme Court in the modern era has been increasingly willing to ignore it.
The classic statement of the political question doctrine appears in Baker v. Carr (1962), the reapportionment case. Ironically, Justice William J. Brennan's summary of the political question doctrine appears in the case most responsible for the doctrine's relative decline in the modern era. The doctrine, wrote Brennan, is essentially a “function of the separation of powers”; such cases involve “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it” (p. 217). Brennan also suggested that the political question doctrine might apply in cases that required the Court to make policy decisions that were inappropriate for judicial resolution or that might cause embarrassment or endanger the national interest.
The political question doctrine discouraged the Court from involving itself in many foreign policy issues and in disputes concerning the legitimate government of states in periods of rebellion. It also figured into the Court's reluctance to deal with a number of cases of direct importance to the political process, including those involving constitutional amendments, political party conventions, and, most of all, legislative reapportionment (see Gerrymandering).
The Court's reluctance to enter into what justice Felix Frankfurter called the “political thicket” was expressed, for example, in Coleman v. Miller, a 1939 case concerning the proposed Child Labor Amendment. The amendment had been passed by Congress in 1924 and sent to the states; after more than a decade, its opponents sought to prevent further state ratifications on the grounds that too much time had passed (see Constitutional Amending Process). The Court refused to get involved in the case, reasoning that the Constitution had lodged full authority over the amending process in the Congress. A similar episode occurred in 1972, when the Court refused to decide a dispute over the seating of the California and Illinois delegations to the Democratic National Convention. The Court has also refused to become involved in cases that, for prudential reasons, have seemed inappropriate for judicial involvement. One such case was Mora v. McNamara (1967), which presented a direct challenge to the constitutionality of the Vietnam War.
It was in the reapportionment area, however, that the political question doctrine was given its fullest play. The 1946 case of Colegrove v. Green rejected a challenge to the Illinois congressional apportionment scheme. Justice Felix Frankfurter cited the Court's lack of competence in determining whether such a policy violated the Constitution and expressed the view that the issue involved was “of a peculiarly political nature and therefore not meant for judicial determination” (p. 552). Participation in the apportionment controversy, Frankfurter warned, would bring the Court “into immediate and active relations with party contests” and would be “hostile to a democratic system” (pp. 553, 554).
Frankfurter's reasoning was rejected in Baker v. Carr. Justice Brennan held that the Court's many Fourteenth Amendment equal protection cases provided an appropriate and manageable judicial standard; instead of involving a political question, the case simply involved the consistency of state action with the Constitution. In subsequent cases, including Reynolds v. Sims (1964), the Court created the
The Supreme Court has rarely invoked the political question doctrine in recent years. An exception occurred in Nixon v. United States (1993), in which a federal judge challenged his impeachment by the Senate on the grounds that he had been tried not before the full Senate, but by a senatorial committee. The Court held that questions regarding the legitimacy of an impeachment proceeding were for the Senate, and not the judiciary, to decide. Far more frequently, however, the justices have dismissed political question claims and have decided cases on the merits.
Supreme Court and Modern American Politics
Two features characterize the modern Supreme Court's relationship to the political process. First, despite occasional exceptions, the Court remains extraordinarily deferential to the federal government on broad matters of public policy, especially foreign affairs and economic regulation. Since these areas comprehend the most critical activities of the modern federal government, the Court's deferential attitude makes full‐scale confrontations with Congress—on the order of Dred Scott or the New Deal cases—unlikely.
The Supreme Court remains highly engaged in deciding issues of great importance to the nation. The Court's high profile on matters of central importance to the lives of individuals and communities practically guarantees that its decisions will continue to generate controversy. For the modern Supreme Court, therefore, an ongoing atmosphere of intense controversy has become routine. Such controversy is likely to continue into the future despite (or perhaps because of) changes in the Supreme Court's interpretation of particular constitutional provisions. Elimination of this controversy as a staple of national political life would require a dramatic change in the role of the Supreme Court in American politics—a change as fundamental as the tranformation produced by the Court's adoption of the Carolene Products footnote.
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American Constitutional Law ,2d ed. (1988). - Charles Warren,
The Supreme Court in United States History, 1836–1918 , 2 vols. (1926)
— William Lasser
