Some Co-Equal Branches of Government are More Co-Equal than Others
The systems that helped create an out-of-touch right-wing Supreme Court
It’s no secret that the Roberts Court has been rolling back civil rights at a rate almost unprecedented in the history of the United States. But how did we get to the point where nine unelected people have so much power over the way our Constitution is applied?
When you picture the structure of the federal government of the United States, you likely picture something like this:
You were taught that the U.S. has three co-equal branches of government: the legislative branch, which makes the laws, the executive branch, which enforces the laws, and the judicial branch, which interprets the laws.
You were also taught that these three branches of government are kept equal by a series of checks and balances spelled out in the Constitution and that a separation of powers kept each branch separate from the others.
But this is a myth. One branch of government is much more co-equal than the other two. One branch regularly blocks the actions of the other two. And this is not the only myth about the judicial branch that you have come to accept either.
The Myth of Co-Equal Branches
The myth of three co-equal branches of government is in part based on the structure of the Constitution itself. Article I established the legislative branch, followed by Article II describing the executive branch and Article III setting forth the design of the judicial branch.
You see this framework in popular culture, civics education materials, and even on government websites.
Each branch of government is balanced against the others by a series of checks and balances. However, in practice, the judicial branch is the first among peers. After all, the Supreme Court has the final say on whether any action of the executive or legislative branch is constitutional.
The idea that the judicial branch should be in this primary position conflicts with the text of the Constitution and the intentions of framers such as James Madison and Alexander Hamilton. While Hamilton favored a system where the executive was the primary branch, Madison, the drafter of the Constitution, and most of the other delegates, wanted Congress to be the “first among equals” when it came to running the government as Representative Jamie Raskin, a Democrat from Maryland, said in a 2019 op-ed in the Washington Post.
So how did the Supreme Court, the head of the most undemocratic branch of government, the only branch of the federal government where not one person is elected, come to have the power to thwart Congress and the President of the United States?
Judicial review.
Judicial Review Changed Everything
Judicial review is the concept that the Supreme Court has the power to examine acts of Congress and the executive branch and rule on their constitutionality.
This phrase does not appear anywhere in the Constitution, and there is no explicit delineation of the power of federal courts to strike down acts of the other branches of the federal government in the document either.
Chief Justice John Marshall first claimed this power for the Supreme Court in the 1803 case of Marbury v. Madison. (A future Systemic post will provide a more detailed look at Marbury v. Madison and the power of judicial review.)
Since 1803, the power of judicial review has been grudgingly accepted by the other two branches of government, and more importantly, ingrained in the popular understanding of Americans as a part of their system of government.
The Myth of an Apolitical Judiciary
With America’s political obsession with fidelity to the Constitution, you would be right to wonder how we allowed the Supreme Court to accrue so much power when it was not explicitly outlined in our government blueprint.
There are two primary reasons for this.
One is that the Constitution is not our system of government; it merely describes it. Just like a blueprint is not a building, the Constitution is not a system of government. The actual system relies on any number of extra-textual norms, practices, and traditions to keep things running smoothly, a systemic weakness exploited (albeit often ineptly) by Trump in his first term.
The second reason that the judicial review took hold and turned the idea of co-equal branches into a fiction was a second American civic myth—that the courts, and especially the U.S. Supreme Court are not political. You see this myth all of the time in the Court’s opinions and even in political science textbooks. The legislative and executive branches are described as the political branches, with the implication that the courts, because of their unelected status, are above politics.
However, all governance is political, and the interpretation of any law is a political act. To paraphrase Vice President Harris’s mother, no law fell out of a coconut tree; a law exists in the context of everything that came before.
Part of the context of any law is best explained by writer, comedian, and game master Brennan Lee Mulligan during an episode of the web show Dimension 20:
“Laws are threats made by the dominant socioeconomic-ethnic group in a given nation. It’s just the promise of violence that’s enacted and the police are basically an occupying army.”
The Supreme Court decides when the violence of the state is warranted and when it is not every time it takes any case, but most acutely in cases dealing with the life, liberty, and property of ordinary people.
The Supreme Court hides behind a mask of impartiality and apolitical action to make political decisions, and it has done so throughout the history of the United States. Sometimes those political actions are supported by the population and sometimes they are not.
Sometimes they are just, but often they are not. As recent decisions by the Roberts Court on women’s reproductive rights and presidential immunity show, there is little the other two branches of government are able or willing to do to check the political power of the Supreme Court.
We’ve Been Here Before
The Roberts Court is not the first time the undemocratic and nakedly political actions of the Court have been disruptive and unpopular.
One interesting historical parallel is the Hughes Court under President Franklin Delano Roosevelt (FDR). FDR was stymied by several decisions the Supreme Court made to strike down executive actions and legislation enacted by Congress to help deal with the effects of the Great Depression. (There will be a more detailed post in the future on how these New Deal cases affect the way our government works in the near future.)
There is a scholarly consensus that at least some of the justices made their decisions on the basis of their political beliefs and then created legal arguments to justify their conclusions. However, public outcry over the court standing in the way of relief, Roosevelt’s landslide reelection, and perhaps his court reform proposal, resulted in Justice Owen Roberts changing his position and the Court upholding most of the rest of FDR’s New Deal agenda.
How the Co-Equal Branches and Apolitical Courts Myths Gave Us This Supreme Court
Currently, the Supreme Court has nine members, as set by the Judiciary Act of 1869. The Constitution does not have a fixed number of justices for the high court and leaves that decision to Congress. Six members reliably vote for right-wing political priorities, regardless of precedent or sound legal reasoning. All six of these justices were appointed by Republican presidents. Three of the justices were nominated by President Trump in his lone presidential term.
The most conservative members of the Court have relied heavily on the myths of co-equal branches and an apolitical judicial branch to accrue power and consistently overturn the will of the people of the United States.
Your Political is My Apolitical
All six of the justices who voted to overturn the constitutionally protected right to abortions as a subset of the right to privacy first established in the 1973 case, Roe v. Wade, gave testimony in the confirmation hearings that they would not make decisions based on their political beliefs but would only consider the legal arguments in a given case. They also all testified that they would respect the legal concept of stare decisis, which means only overturning established precedent in extraordinary circumstances. (Stare decisis and the Roberts Court will be covered in a future post.)
In case after case, these conservative justices have made a mockery of the aphorism that judges don’t make law, they only interpret it. Decisions such as fundamentally changing how the executive branch operates through administrative agencies by overturning the principle of Chevron deference, stripping the Voting Rights Act of critical enforcement provisions, as well as overturning Roe v. Wade are nakedly political acts under the cover of poorly reasoned legal framings.
Judicial Ethics
The idea that the branches are co-equal creates tension over whether Congress can impose a system of judicial ethics on the Supreme Court. Unsurprisingly, the Supreme Court believes that would be unconstitutional.
However, Justice Jackson has announced her support for an enforceable code of ethics for the Supreme Court.
This discussion of judicial ethics is critical because Justices Alito and Thomas have been mired in corruption scandals relating to their acceptance of gifts from billionaires with political interests before the Court. The two have consistently declined to recuse themselves, and there is no way to force their recusal.
Additionally, Justice Thomas may have leaked confidential Court information to his wife, Ginni Thomas, and her political lobbying organization while also failing to recuse himself in cases that interest her and her organization.
Justices evade accountability for their actions by claiming to be apolitical actors whose decisions must necessarily sometimes be unpopular and who are above censure from the other branches as being co-equal while using the threat of judicial review to limit Congress’s attempts to reign the Court in.
Writ of Certiorari
The Supreme Court also has the power no other court in the United States has. It can shape its docket. Almost no cases are automatically eligible for appeal to the Supreme Court. Instead, litigants must apply for a Writ of Certiorari. This means that at least four of the justices must agree to hear a case before it can be appealed to the Supreme Court. Given the current composition of the Court and the conservative tendencies of several circuit courts, this allows the Court to cherry-pick cases that fit the justices’ political agendas.
Other Issues
Other structural and systemic issues allow the Court to block popular progressive policies that unelected oligarchs object to. These issues include the Court's small size, the Senate's undemocratic nature in confirming justices, and the lifetime appointments enjoyed by every federal judge, from district court judges to supreme court justices.
Ways to Make the Supreme Court More Just, Accountable, and Democratic
Ever since FDR’s unpopular court reform measures failed in the 1930s, there has been a truism among political scientists and politicians that it’s folly for the other two branches of government to try and limit the power of the judicial branch.
However, this truism is built upon, you guessed it, the same two myths of American civics that we’ve discussed throughout this essay: co-equal branches and an apolitical judiciary.
The reality is that Americans have less confidence in the Supreme Court’s objectivity and legitimacy than ever before. The last time there was this much distrust of the Court was in the 1930s when Justice Roberts had a change of heart, and Justice Van Devanter abruptly decided to retire.
In other words, we have plenty of evidence that the Court is sensitive to public opinion and perceptions of their legitimacy.
Furthermore, we don’t have the luxury of waiting for older justices to die or retire when Justice Thomas and Justice Alito have already signaled not only a willingness, but also an eagerness, to overturn well-established rights like birthright citizenship, the right to marry anyone regardless of race or gender, and the right to be free from criminal prosecution for being gay.
While the most radical reforms would require a Constitutional amendment, many are well within Congress’s power to enact today.
A New Judicial Act
Congress has not changed the size of the Court since 1869, a time when there were only 37 states, the Civil War had only ended four years earlier, and the population of the United States was less than 39 million, about 89% smaller than today.
Currently, the Court has a 6-3 conservative majority. However, just increasing the size of the Court is not enough to prevent future abuses of power by justices.
The way the Court works in the context of the federal judicial system needs to be rethought.
Congress should use a new judicial act to correct many of the problems that plague the federal court system. For example, it could increase the number of judicial circuits from 13 to 15 by splitting the bloated 9th Circuit into three different circuits, each with 10 judges.
Currently, the Supreme Court justices supervise the 13 circuits, with some justices overseeing multiple circuits. Congress should set the number of justices at 15 so that each justice would only need to supervise one circuit.
Next, Congress should create a procedure where the Supreme Court is no longer allowed to pick and choose its cases. With a court of 15 justices, five three-judge panels could hear most cases appealed to the high court, with certain important cases being granted an en banc hearing of the entire 15-justice court, much like the current procedure in all the federal circuit courts. (There will be a post about the workings of the current judicial system beyond the Supreme Court in the future.)
As part of a new judicial act, Congress should create an enforceable ethics system for Supreme Court justices, one that could utilize three-justice panels as well. During confirmation hearings for the new crop of justices, the Senate should ask nominees to state on the record their position on the rules. This would essentially dare the Court to strike them down.
Impeachment
Congress has historically been more likely to impeach a president than a Supreme Court justice. Congress must reclaim its Constitutional prerogative and work to actively remove justices like Thomas and Alito, whose corruption threatens the legitimacy of the entire constitutional system.
Kill the Apolitical Myth
Lastly, the President and Congress should dispel the notion that the Court is apolitical by appointing and confirming more people with political experience as governors, members of Congress, and senators. This is hardly unprecedented. Justice Warren was a former governor of California and served as Chief Justice of the Supreme Court from 1953-1969. Chief Justice Taft was a former President and Vice-President of the United States.
People who have faced elections have a different understanding of the popular will than people who have only ever served as appointees.
We need more open and honest politics in the judicial branch, not hidden agendas. The more biases and political leanings are understood, the better the selection of Supreme Court justices will be.
While these changes may seem radical, they are the bare minimum needed to modernize the Supreme Court and to protect the civil rights men and women have been fighting and dying for over the past 100 years.
A More Radical Approach to Supreme Court Reform
There is an even more radical approach to Supreme Court reform that would make the Supreme Court even more just, accountable, and democratic.
The Supreme Court could be made even larger than 15 justices. We have 535 members of Congress between the House and Senate, why not have a Court of 45 justices, where teams of three justices oversaw each of the 15 circuits? The more justices there are, the harder it will be for one judicial philosophy or temperament to derail the will of the American people.
More radical still, a Constitutional amendment could be secured that eliminated lifetime federal judicial appointments and replaced them with lower court judges who served for fourteen years terms. These district court and circuit judges would still be appointed by the president and confirmed by the Senate. Their terms could be renewed through the same process.
The most important part of this amendment would be how the Supreme Court justices were selected. It would require them to stand for national elections in overlapping ten-year terms. Almost every local and state judge and justice in the U.S. already stands for election; why not the Supreme Court?
The framers of the Constitution may not have liked the idea of elected justices, but they didn’t want women, unpropertied white men, Native Americans, or Black men to vote either.
We elect the President and entrust them with the power to launch a world-ending nuclear strike; we can elect a body of justices to make decisions about the constitutional uses of governmental power.
In the end, the only way to hold anyone accountable to the people is for we the people to have a voice in their selection.
Books to Read
Animal Farm, George Orwell—If you know, you know.
The Least Dangerous Branch, Alexander Bickel—A fascinating critique of the Supreme Court and judicial review written in 1962. Bickel makes a conservative attack on what he sees as the out-of-control liberal Warren Court, but many of his worries seem prescient in the face of the conservative Roberts Court.
Constitution Illustrated, R. Sikoryak—The best way to read the text of the Constitution. Each section is illustrated in the style of various popular comic strip characters, making the text easier to read and much more fun.
Notes:
https://founders.archives.gov/documents/Hamilton/01-04-02-0199
https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine#CITEREFLeuchtenburg1995
https://www.politico.com/news/magazine/2024/05/30/alito-scotus-flag-00160450
Wow, Jason, I've finally carved out some time to read this newsletter, and I am enjoying it so much! What a really excellent overview, placing today's challenges in the context of historical development - and then proposing solutions that I, for one, am absolutely on-board with. I definitely think the more radical approach is best, but would be willing to settle for the "well within Congress’s power to enact today" to begin with 🤣
Also, the Coconut Tree quote + artwork could not have been more perfect! Off to a great start, looking forward to catching up on the rest!
Thank you for this post, Jason!