The Judiciary

The Supreme Court is composed of the Chief Justice and other Associate Judges appointed by Congress, and its primary function is to seek the facts. The Supreme Court has the constitutional prerogative of judicial review, and its use of the right is rife with conflict and debate. There are two major topics to consider: whether it enhances or detracts from the United States' representative democracy and the widespread tradition of pluralism. This paper contends that the right to judicial review simultaneously benefits and harms representative democracy and pluralism. Judicial review refers to the right of the court to rule on the constitutionality of federal and state law (Judiciary). The U.S Supreme Court enjoys this institutional prerogative to determine the constitutionality of federal and state legislation. It is a potent power because it allows the Supreme Court to put checks on the legislative and executive functions by abolishing any unconstitutional acts passed by either(The Court and Its Procedures). The members of the Supreme Court are not elected but are nominated by the president with the approval of the Senate ("The Court as an Institution - Supreme Court of the United States", 2017) and many people have criticized the fact that the judiciary (unelected members) can invalidate the legislation passed by the elected branches (executive and legislature). The concern is that the prerogative of judicial review held by the Supreme Court is in conflict with the fundamental principles of elected officials representing the citizens.

Representative democracy refers to a system of the government where eligible citizens vote on representatives to pass laws on their behalf, that is, the elected officials represent the citizens. The modern representative democracy in the U.S is under the influence of political parties where they compete by their manifestos. The party which gets the majority endorsements can then effect its desired programs to fulfill the connection between preferences and policy. Its primary tenant is equal justice under the law, and the Supreme Court discharges this role by ensuring that the American people get equal justice under law. However, the rule of law must be abided by, and judicial review gives assurance of individual rights as well as invalidating actions from the elected officials which conflict with the Supreme Law, the Constitution ("The Court and Constitutional Interpretation - Supreme Court of the United States," 2017)

Pluralism refers to the fact that multiple legal systems can exist within one geographical area. A pluralist system seeks to accommodate the interests of as many people as possible without causing disturbance to the state’s ability to proceed with projects. It argues that “the more the voices, the better” and this encourages a lot of individuals to enter the political marketplace. Pluralism has become a standard practice, and a major concern for most people is that democracy becomes fragile when the different people have high political stakes. For instance, groups will detach when they feel that their participation is useless or their interests are not being taken into consideration.

The prerogative of judicial review held by the Supreme Court compliments representative democracy because the court does not exercise its powers in a vacuum. Bardes, Shelley, & Schmidt point out that the political environment which includes public opinion and the influence of top government officials shapes most of the court's decisions. More importantly, the courts “follow the election returns” meaning that the exercise of judicial review compliments public opinion. The main feature of representative democracy is majority rule, and the Supreme Court compliments this by invalidating previous statutes passed by majority’s no longer in power and upholds the laws enacted by the majority political coalition. The decisions by the court are in step with the public mood, and through the influence of elected officials, the court may indirectly respond to the preferences of the public.

However, the same prerogative of judicial review held by the Supreme Court detracts from representative democracy. The court at times will act strategically to prevent the reversal of its decisions from the encroaching arms of the elected arms of government. The main issue is that judges are insulated from the electorate and by exercising judicial review to invalidate legislation passed by elected members, the court is threatening the principles of democratic self-governance ("Biographies of Current Justices of the Supreme Court," 2017). Also, the function of judicial review is not explicitly stated in the Constitution and by the Supreme Court exercising such authority, it is violating the very law it argues it protects. In a representative democracy, the constitutionality is an issue to be addressed by the elected officials and by the Supreme Court aggressively using judicial review; it seems an act of defiance to the Congress.

The Justices Caseload points out that approximately 7000-8000 cases are filed in the Supreme Court. In such cases, the judicial review process compliments pluralism by involving a plenary review of attorneys to provide their opinion. Bardes et al. point out that pluralism is all about involving diverse groups and the overall effect is enriching the democratic discourse. For instance, the attorneys will defend their opinions in light of their supporters, but in the end, they come up with a universal concept. Also, judicial review ensures that political agendas abide with the equal protection clause which invalidates any legislation that inspires prejudices regarding race or ethnicity. The Supreme Court also compliments pluralism through the role of the amicus curiae by bringing to the attention matters of public interests that may not have been presented.

On the other, the prerogative of judicial review held by the Supreme Court detracts from pluralism. One way is the imposition of permanent defeat on a particular group or issue despite the opposition from other individuals. The Supreme Court may hardwire a controversial issue into the constitution thereby removing it from the discourse of political discourse. Concerns also arise when a different regime gets into power and also as the social norms change, the law remains unchanged on the books. An example is the issue of the LGBT community where anti-homosexual statutes were passed in 1945 marking such individual’s social outlaws. However, the courts are undertaking to review the laws, but the efforts have been met with stiff opposition from diverse groups.

In conclusion, the prerogative of judicial review held by the Supreme Court compliments representative democracy by taking into consideration public opinion and mood as well as the political environment. However, it detracts from representative democracy because the nominated court officials cannot invalidate legislations passed by elected members. Also, such a function is not explicitly provided in the Constitution. Regarding pluralism, the prerogative of judicial review compliments it by the involvement of diverse groups of individuals as well as the amicus curiae. On the other hand, it detracts from pluralism by abolishing legislations that are against the majority voice of the people.









Works Cited

Bardes, Barbara, Mack Shelley, and Steffen Schmidt. American Government and Politics Today: The Essentials 2015-2016 Edition. Cengage Learning, 2008

Biographies of Current Justices of the Supreme Court. (2017). Supremecourt.gov. Retrieved 13 July 2017, from https://www.supremecourt.gov/about/biographies.aspx

Judiciary. (2017). YouTube. Retrieved 13 July 2017, from https://www.youtube.com/watch?v=enV_PtvLyM4

The Court and Constitutional Interpretation - Supreme Court of the United States. (2017). Supremecourt.gov. Retrieved 13 July 2017, from https://www.supremecourt.gov/about/constitutional.aspx

The Court as an Institution - Supreme Court of the United States. (2017). Supremecourt.gov. Retrieved 13 July 2017, from https://www.supremecourt.gov/about/institution.aspx

The Justices' Caseload - Supreme Court of the United States. (2017). Supremecourt.gov. Retrieved 13 July 2017, from https://www.supremecourt.gov/about/justicecaseload.aspx