There are reasons to raise the question in the title. After I started drafting this blog, I thought it would be nice to see what the legal professionals have to say. Sure enough, this essay by a law professor at NYT offered some interesting historical details, such as the founding fathers paid the least amount of attention to the judicial branch of the government, and each branch of government can interpret the constitution in its own way, not leaving that task entirely to the Supreme Court.
The above essay has focused on the history of the Supreme Court, with a conclusion that the Supreme Court should not have been mattered so much. This is interesting but not enough. Time has obviously changed since then and just because the founding fathers thought about the court in a certain way does not mean the court has to act the same way as before.
My thinking is that the current “Supreme” position of the highest court can be explained by three reasons. First of all, it is the only branch of the government that is not elected but rather appointed. Without begging for voters’ votes, the justices somehow have distanced themselves from the ordinary citizens. Secondly, the judicial branch has a crystal clear hierarchical system, which makes it easy to see the Supreme Court as the “Ultimate Court” for with the highest authority or the last resort for justice of this land. It matters little how the founding fathers thought about the court system, what matters is how citizens perceive it today.
The final reason is that the Supreme Court is also made up of the best qualified professional elites, unlike the president, the Senators and Congressmen that anyone can be elected.
The highest court however faces its own constraints that make each member somewhat less important than the president.
First of all, the highest court is much less active than the courts below it, despite its highest publicity and biggest influence than others. According to this report, each year the court received about 10,000 petitions but only about 75-80 cases will be heard by the court. Many cases do not reach the Supreme Court at all, and even if appeals have been made to it, the highest court can always say no.
Secondly, the highest court is bound by the constitution and also by the specific scenarios that appear in the case of petition. The rulings or the judicial reviews are determined by bare majority and each justice must prove its opinion by showing its logic found in or consistent with the constitution. Judge Amy Coney Barrett was right to repeatedly state that she is independent of the president who nominated her, that “If I gave off-the-cuff answers I would be basically a legal pundit and I don’t think we want judges to be legal pundits, I think we want judges to approach cases thoughtfully and with an open mind.” At another time she stated: “Senator, if that question ever came before me, I would need to hear arguments from the litigants, and read briefs, and consult with my law clerks, and talk to my colleagues, and go through the opinion writing process.” and “Judges can’t just wake up one day and say, ‘I have an agenda, I like guns, I hate guns, I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.” Frankly, after these comments from the hearings I felt good about the independence of the female judge.