Maybe I have missed it, but in all the many pages and web pages I have read on the Supreme Court and its decisionmaking over the last couple of weeks, I have yet to see any serious discussion of its highly undemocratic reality and operation. The bigger question beyond recent decisions about health care or immigration, or even about the conservative power on the court or that power’s undemocratic and often anti-progressive decisions, is why “we the people” allow, and have always allowed, such an undemocratic body to have so much power over our country. This the part of the discussion about this court that I offer in my new book, White Party, White Government (Routledge 2012):
Yet another undemocratic political institution–in addition to the U.S. Senate and the electoral college–created by the white male founders is the U.S. Supreme Court. Intentionally created as an unelected body with little democratic overview, over time the Court has gained even greater unsupervised political power, much of it in effect legislative. In an early and unanimous Court decision (Marbury v. Madison), the Supreme Court justices, led by Chief Justice John Marshall, decided the Court had the power of final judicial review, a legal theory that allows the Court to decide whether congressional legislation is constitutional, thereby allowing a few unelected justices to invalidate legislation by the more representative U.S. House.
Only the elite Supreme Court has the power to regularly interpret, and in effect periodically amend, the Constitution by a majority vote. In this way, the Supreme Court (and often other high federal courts) can legislate without needing the consent of the legislative branch, while the latter’s legislation is always subject to a judicial veto. Indeed, the Supreme Court has vetoed congressional legislation some two dozen times as unconstitutional and, even more often, interpreted congressional legislation so as to weaken or destroy the congressional intent behind that legislation.
Almost all such eviscerating decisions have been made by the Court in the interests of some segment of the ruling elite. As analyst Richard Kluger has noted, across the world “no other government reserves the last word for the judiciary to pronounce.”
Unmistakably, the elite founders intended for most important changes in the U.S. Constitution to be in the hands of elite white male judges, and not even in the hands of a majority of white male voters. For most of U.S. history a majority of the Supreme Court justices were southern slaveholders, segregationists, or judges sympathetic to the latter’s views. From the 1790s to the 1950s, the all-white, all-male Supreme Court was very important in protecting the extensive system of racial oppression dominating the lives of Americans of color, most especially slavery and Jim Crow segregation.
And here is what I am adding in a new edition of my white racial frame book:
As of 2012, a total of just 112 people, 108 men and 4 women, have ever served as powerful Supreme Court justices. More than 97 percent have been white, and 93 percent have been white men. Given this extremely biased demographic reality, the dominance of a strong male-oriented (patriarchal) version of the white racial frame in many U.S. court decisions and in much U.S. law, now over more than two centuries, is certainly unsurprising.
Such data signal, among other things, how disingenuous and racism-evasive so much white male complaining about “loss of power” in the US today really is.
And we have been, and are, a “democracy”? Rule by all the people, really?