Has the Supreme Court Grown Beyond What the Founders Wanted?

Narration: The federal government is often described as a complex system of checks and balances among three co-equal branches of government. Another way to look at it is to see the federal government as four deliberative bodies stacked on a pyramid. At the bottom is the House of Representatives. It is the most powerful with 435 members. It is the most diffuse body, but its power is that in matter of impeachment, war, taxes and spending, the House has the initiative.

The second body is the Senate with 100 members. Its sole power is the ability to say no to bills and motions passed by the House and to approve presidential appointments and treaties.

There is no fixed number of justices, but by tradition there have been nine justices on the Court. The framers gave the Court no initiative authority. It can only act if someone petitions it to act. However, the Court has the power to say no to any action taken by the president, the Congress, and the states.

At the top of the pyramid is the president, who has both the initiative and the power to say no to Congress through his veto.

This model became broken in the 1950s and 60s as activist judges took it upon themselves to create new laws on their own. This seizure of initiative is the innovation that disrupted the constitutional system created by the framers because there is virtually no check for a power the framers never anticipated.

Simone Gao: Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. I spoke with him about the changing role of the Supreme Court.

Simone Gao: Mr. Shapiro, what was the original purpose of the Supreme Court and has its role today outgrown what the founding fathers intended?

Ilya Shapiro: Well, the Supreme Court or the judiciary in general is supposed to check the other branches. So if Congress passes a law that goes beyond its Constitutional authority, the Supreme Court or lower federal courts are supposed to strike it down. If the president or an executive agency does something that’s beyond their statutory authority, the courts are supposed to step in. And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. And so now we’ve sort of gotten used to the idea that every June at the end of term, the Supreme Court rules on three or four or half a dozen of the most important political issues in the country. And you think about it in the last decade, everything from health care, immigration, racial preferences, abortion, political gerrymandering, campaign finance, voting rights, you name it, a big political controversy, the Supreme Court is involved.

And it’s not because the Supreme Court is trying to get involved and trying to earn a higher profile or gain more power. It’s just a function of a system that has concentrated power in Washington. And in a large and diverse country, you’re going to have differences of opinion that ultimately end up resolved by the Supreme Court. I think, ultimately, the way to reduce political polarization, or the tension, the toxicity that we’re living the last decade, is to push power back down to the states and the localities. If the Supreme Court doesn’t have to decide these major issues of federal power or executive authority or what have you, then it won’t be as talked about. I think that would be a good thing. But it’s not just the Supreme Court. It’s also Congress. It’s also executive agencies. As power has centralized in Washington, all of these institutions start playing a larger role.

Simone Gao: You just mentioned that these branches of government shouldn’t have so much power. But how can their powers be cut back?

Ilya Shapiro: Well, just like it’s taken decades to get to where we are, it will take decades to get back. I think the Supreme Court, starting in the ‘30s, started approving uses of federal power that go beyond Constitutional authority without amending the Constitution. And that’s really the genesis of the growth of power here in Washington. But it’s not just that. It’s also Congress abdicating its authority or delegating its power to the executive branch. That way congressmen can say, I voted for this great law and I’ll just have the bureaucrats sort out the details. And if people don’t like the details, they can blame the agency. They shouldn’t blame me, I passed this great law. But it’s the bureaucrats, it’s the civil servants, it’s the agencies that are doing the bad things. And, of course, people can’t lobby the agencies or the bureaucrats.
They can only sue them. And that’s why all of these major disputes over clashes of policy views or values end up in the courts rather than being decided in the halls of Congress. There’s something unusual and unhealthy about protests going on outside the Supreme Court rather than outside of Congress because all of these major clashes of policy positions or values should be decided by our elected representatives, not pushed to the executive agencies and ultimately resolved in court.

Simone Gao: I also asked the Democratic side the same questions. Thomas B. Reston has spent a lifetime in politics, working in eight presidential campaigns at the national level and in countless local and statewide efforts. Reston was a political appointee in the Foreign Service under President Jimmy Carter, serving as Deputy Assistant Secretary of State for Public Affairs. He is a civil rights advocate and author of “Soul of a Democrat.” Here is my discussion with him.

Simone Gao: Do you think the role of the Supreme Court has gone beyond what the framers had intended?

Thomas Reston: No, I don’t think so. In fact, I think, as a practical matter, the role of the Supreme Court is returning more or less to what the framers wanted, or certainly Mr. Chief Justice John Marshall, who was the great conservative who established the principle of judicial review, over the actions of Congress so that the Supreme Court could knock out legislation that had been written and passed by the Congress if the Supreme Court found the legislation to be unconstitutional. So I think really the Supreme Court is returning to its earliest days as this staunch, as the staunch wall against an unbridled Congress. I think that it has always functioned as the great conservative part of the American government. And I think with the new conservative majority on the court, which has now been established, I think the court will return to its essential role.