From abortion rights to guns to the environment, the U.S. Supreme Court is making decisions to the dismay and detriment of many and the fury of others. Some activists argue that the power of the court needs to be reined in via term limits or court packing. Furthermore, the politicization of the Supreme Court is often a key talking point in discussions that arise around it. The Supreme Court’s power arises from the polarization that has increased in the last few decades, often leading to very decisively split government; for example, the current Senate is equally divided on party lines, rendering it unable to legislate frequently or effectively.
The Supreme Court may seem like the most powerful institution in the country, but it most certainly was not designed to be that way. The United States has a system built on checks and balances, but oftentimes “checks and balances” feels idealistic, more of a saying rather than an actual feature of our system of government. The Supreme Court has the power of judicial review over laws passed by Congress and actions taken by the president, and it sometimes “legislates from the bench.” Congress and the president influence the Supreme Court and its decisions in return. Congress does this by passing new laws, sometimes in direct contradiction of decisions or direction of the Supreme Court. The president is able to circumvent, or potentially even disregard, the Supreme Court without punishment. And together, Congress and the president, along with the states, can overrule the Supreme Court by amending the U.S. Constitution itself. And, of course, members of the Supreme Court and lower federal courts are nominated by the president and confirmed by the Senate. Anyone can make these claims and support them, but how do they make the Supreme Court any less powerful? These historical examples will prove it.
In 1857, the Supreme Court delivered one of the most consequential decisions of the 1800s. In Dred Scott v. Sandford, the Supreme Court ruled that Congress could not outlaw slavery in federal territories and that slaves were deemed property, not human beings, according to the Constitution. This decision played a pivotal role in the build up to the Civil War and was an incredible exercise of power by the Supreme Court that created immense impact, generating a lot of the tension between states and legal support for the eventual secession of southern states.
Immediately after the war, the Constitution was amended three times. These amendments reversed the Scott decision and codified legal protections for Black Americans. These amendments illuminate the nature of power held by the Supreme Court. For the Supreme Court to be powerful, the other branches must let it. The Supreme Court exercised power in the debate over slavery by asserting that the Constitution supported slavery. However, the other branches were able to counter the Court’s decision by utilizing their own Constitutional powers. They put the Supreme Court in its place by making the Constitution’s wording unavoidably clear.
In 2007, Lilly Ledbetter’s case, which spent years in the court system, was finally decided by the Supreme Court. The case involved Ledbetter and her employer, who had been paying her less than her male counterparts. A lower court ruled in her favor, granting her the right to sue over pay discrimination, but after a reversal by the U.S. Court of Appeals, the case landed in the Supreme Court, who once again ruled against Ledbetter. Following the decision in favor of the employer, President Obama signed the Lilly Ledbetter Fair Pay Act into law, limiting and reversing some of the impact the court ruling had. While Ledbetter never received the pay she deserved, Congress and the president were able to codify a law that would provide additional protections to workers without court approval. This is another example of the other branches not only limiting the Supreme Court’s actions but also providing future defense from the court inserting itself into already settled legal questions.
Looking at the presidency of George W. Bush is the perfect way to finish an exploration of the court’s power. After 9/11, the executive branch was granted immense power to prosecute the War on Terror. President Bush utilized this power to create and operate a prison camp at Guantanamo Bay for individuals suspected of terrorism. In this facility, individuals could be detained indefinitely without justification and without following traditional rules and regulations around detainment. This includes ignoring the protections prisoners of war are provided by the Geneva Conventions, as well as military statutes and procedures.
The Supreme Court responded by hearing the cases of several detainees of Guantanamo. In 2004, the Bush administration argued that the sole authority of detention and judicial oversight was within the executive branch during wartime in Hamdi v. Rumsfeld. The Supreme Court ruled that a citizen still had rights, regardless of wartime status, and that the Supreme Court could still hear cases that would normally be held by military tribunal. Then, in 2006, the Supreme Court dealt another blow to the Bush administration in the case Hamdan v. Rumsfeld by ruling that the executive branch must follow its rules and regulations, including abiding by the Geneva Conventions, which it had failed to do for Hamdan. Finally, in 2008, Boumediene v. Bush required the Bush administration to inform detainees of what they were being charged with.
These court cases illustrate how the Supreme Court has constantly fought to reign in the authority of the president. The struggle to enforce the Constitution’s restrictions on the Bush administration was never-ending. Each time the Supreme Court delivered a new blow, the Bush administration simply moved the goalposts and continued their actions, despite the prior rulings. Two decades later, the detention center in Guantanamo is still open with 39 detainees — some of whom have yet to hear their charges. In these cases, the Supreme Court was attempting to exercise its right to oversight over executive actions, but it was only able to make a surface-level impact. These decisions should have changed the way the Bush administration operated, but they were ultimately ignored and overpowered by an insistent and methodical president who would do anything he could to achieve his administration’s ends.
Just this small selection of cases illustrates the power the Supreme Court has and the power that it doesn’t. It can make incredibly consequential decisions, but for these decisions to have any consequence whatsoever, the executive and legislative branches have to submit to them. As many of us look on helplessly at the destruction of civil rights this current Supreme Court has orchestrated, it is essential that we remember we are not helpless. There are things we, and the other branches of government, can do. So we should stand up, voice our opinions and ensure that the Supreme Court, Congress and the president know where we stand. Those in power may be the only ones that can make the necessary changes, but thankfully, they derive their power from us.
Sam Schmitz is an Opinion Columnist and can be reached at schmitzd@umich.edu.