The Real Question to Ask About Our Supreme Court: Why?

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?


  1. Manju

    Look, the other branches of government created Jim Crow laws. With Scotus, theses laws can either be upheld or reversed. So having Scotus around is either a wash or a net good…with the following exceptions:

    Scotus could invalidate federal laws designed to fight state level discrimination (on separation of powers doctrines) or strike down laws designed to regulate individual discrimination (on an individual rights basis).

    This happened with the Civil Rights Act of 1875. But as we know from history, for all practical purposes, the Federal Government wasn’t going to enforce civil rights. By 1877, the GOP had abandoned reconstruction and left the South in the hands of the savages.

    So scoutus did the least amount of harm, compared to the other branches. But then we enter the New deal and pre-64 civil rights era. This is when Scotus earns its pay.

    • Seattle in Texas

      I think the bottom line though is that Scotus serves to legally legitimate and protect white supremacy and ultimately capitalism by continuously operating within a legal framework that was founded within inherently brutally racist and pathological psychologies–regardless of which guise/era label U.S. society is operating under, at least I would argue. It’s not about which branch did the most or least amount of harm. Any legal system that could legitimate AI genocide, slavery, Jim Crow, the New Jim Crow, etc., at any point in history, is inherently pathological. This legal system in place has always, and still continues, to fail disproportionately people of color and the poor miserably in the U.S. It has made consistently made decisions based on their interpretation(s) of the constitution that has resulted in death, premature life, familial destruction, poverty, despair, etc., for many Americans–specifically those most vulnerable and disadvantaged due to the capitalist economic system in which it operates–with the exception of a few landmark decisions that have been either overturned or chizzled away at largely by the GOP. And even those decisions were not spurred by their good conscious–they were the result of the bottom ranks reaching dangerous boiling points for both themselves and white society. Rather than serving and protecting the rights of all people without discrimination, it serves to protect the interests of the most powerful and wealthy, including corporations, etc.

      These are people who are supposed to be experts in interpreting the constitution. “Interpretation” is an interesting concept alone and those who have done the interpreting have been mostly white wealthy males as stated above. And we go from slavery, to Jim Crow, to the New Jim Crow, all systems that serve to ultimately uphold segregation and stratification, and channel obscene amounts of wealth into the hands of the rich white society in the same of justice…justice for whom? exactly? The private prison industry? Insurance and pharmaceutical industries? at least in current times…. It’s a legal system and branch that too often legitimates, rather than outlaws social inequality and human rights violations because of the legal and racial framework it operates through.

      Anyway, interesting and important question(s) everyone should be thinking about…in my own humble opinion….

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