An enduring institution, like it or not

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William Howard Taft, the only man in American history to serve as both President of the United States and a Supreme Court justice, once remarked that Presidents come and go, but the Supreme Court goes on forever. As true as Taft s statement may have been, the U.S. Supreme Court nonetheless endures a strangely split existence. On the one hand, it wields the great power of interpreting the U.S. Constitution, and on the other, it remains in the shadows of government a cloistered institution unfamiliar to most Americans. A 2007 study from the University of Pennsylvania s Annenberg Public Policy Center found that, of those people surveyed, 78% were unable to name the chief justice of the nation s highest court. Only 34% of this same population was unable to identify judges from Fox television s American Idol. The Supreme Court tends to operate in the background for a number of reasons, one of which, I think, is that people typically have a hard time articulating precisely what it is that the Court does, says Robert Alt, senior legal fellow at the Heritage Foundation. In certain respects, it s the most transparent branch of the federal government. It tells us what it s ruling in a particular case and why it ruled that way and it does so in published format. At the same time, its members deliberate and vote in private, so we re not privy to how they arrive at their decisions. This sort of hybrid operation tends to obscure the Court s role in the American consciousness. Raison d ' tre So what exactly is the Supreme Court s role? A reporter once asked this very question of Justice Byron White, who glibly answered, To decide cases. According to Alt, the reality is more complicated. Fundamentally, the Court s job is to settle disputes that sometimes involve whether or not a law is consistent with the Constitution, he explains, adding that, in doing that job, the justices should be putting aside their personal opinions of the policies in question and ruling on the legal and constitutional merits of a case. The problem is that the Court has gravitated away from this role in the last 70 years, most notably under President Franklin Roosevelt s administration, which applied heavy pressure on the Court to uphold its New Deal policies a move that many legal scholars interpret as policy-driven decision making. But in truth, the same could go for most any issue presented to the Court, depending on which side of the aisle a person sits. To Republicans, the Court may have done its job in Bush v. Gore (2000); to Democrats, it overstepped its bounds in deciding the presidency for American voters. Likewise, Republicans might say that the Court s majority defied legal and constitutional logic in its decision to uphold the Affordable Care Act (2012), while in the eyes of Democrats, it interpreted the law and did the American people a great service. Whether you agree with it or not, the Supreme Court has become almost as much a political institution as it is a legal one, says Russell Wheeler, a visiting fellow at The Brookings Institution. For one, the cases that come before the Court are very often politically charged. Furthermore, you have nine justices that are there for life and can, for all intents and purposes, act with impunity.

Term limits

In fact, Wheeler says he s amazed that there hasn t been more of an effort to limit the terms of Supreme Court justices, highlighting the most recent attempt a proposal for a new Judiciary Act in 2009. Signed by 49 well-respected legal scholars, the petition proposed, among other things, that the life-tenure of justices be replaced with regular biennial appointments of new Justices selected by the then sitting President and Senate. The petition went nowhere, and according to both Alt and Wheeler, it s highly unlikely that any such future appeals will, either. This argument has been swirling around for a long time, notes Alt, but changing a justice s term of office requires a Constitutional amendment, which is a long shot. The Supreme Court is an essential component in our system of checks and balances, and it has been since the founding of our nation. I don t think that will change any time soon. Indeed, Mark Twain issued a similar prediction in a letter to theVirginia City Territorial Enterprisein 1868. The Court, he wrote, makes its own rules....Its custom is to decide by a majority vote, and if it chooses, will no doubt continue to do so. michael.williams@erickson.com

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