Breyer. Ginsburg. Kennedy. O’Connor. Scalia. Scouter. Stevens. Thomas.¹ These eight justices currently sit on the United States Supreme Court and are entrusted with the colossal task of scrutinizing the constitutionality of US laws and government actions—in practice, striking down laws that are unconstitutional. The Chief Justice and eight associate justices all serve lifetime appointments.

At some point in its history the Supreme Court has ruled on every conceivable moral, ethical, social, and political dilemma confronting the nation—abortion, school prayer, display of the Ten Commandments on government property, affirmative action, segregation, recitation of the Pledge of Allegiance, capital punishment, women’s rights, gay rights—in essence, the very fabric of American society which begs the question. Should nine unelected justices have the power to create what kind of society we live in? In other words, the way that these justices’ interpret the constitution affects all our lives: how we freely practice our religion, how we speak and express our ideas, how many limitations will be placed on bearing arms, what is considered cruel and unusual punishment and many other aspects of our constitutional rights. Some justices like Justice Scalia tend to view the constitution as a “dead” document which means the same thing today as it originally did in 1787², while others like Supreme Court nominee Judge John Roberts tend to view it as a “living” document that is “intended to apply in a meaningful way down the ages…in light of today’s concerns and understandings” adding that “the framers chose broad terms [such as liberty or equality] with a broad applicability, and they state a broad principle.”³ These differing judicial philosophies on constitutional interpretation have had a profound effect on American society as rights not explicitly stated in the constitution are extracted resulting in several controversial rulings—the most notable being Roe v. Wade [1973] where it was decided that a woman’s right to an abortion fell within the right to privacy protected by the Fourteenth Amendment of the Constitution, although the original intent of the amendment was designed to grant citizenship to (all persons born or naturalized in the United States) and protect the civil liberties of freed slaves.

So, wouldn’t the people’s interest be better served in the legislature or by referenda? Unlike members of Congress, Supreme Court justices are not directly responsible to an electorate, are not elected, and are not voted out. In a sense, the Supreme Court is well out of the reach of the American voter, and generally well insulated from political pressure which has become both a blessing and curse, but nevertheless allows it to make the tough decisions that elected politicians routinely shy away from. For instance, whether we live in a segregated society with segregated schools, restaurants, hotels, theatres, and stadiums or not, (Brown v. Board of Education of Topeka [1954]; upholding The Civil Rights Act [1964] & Voting Rights Act [1965] et al). However, that same insulation, that same unaccountability to an electorate has given the Court carte blance to create an America based on its interpretation of the constitution. How do we reconcile Americans who see a “right to die” in their interpretation of the Constitution and Americans who don’t, Americans who see a “right to an abortion” in their interpretation and Americans who don’t, and Americans who see a “right to burn the flag” and Americans who don’t? If voters are presumed wise enough to elect their leaders, why not settle these controversial decisions in a heartbeat by referenda? Because the popular vote may still not be the moral, ethical, or even constitutional vote. America would probably still be segregated today, the distinction between church and state would probably be obscured, and, according to polls, abortion would still be legal.

(Footnotes)

¹ Chief Justice William Rehnquist died in 9/05 while still serving on the Supreme Court.

² “Originalist? Constructionist? A Confirmation Hearing Glossary” The Associated Press. Thursday, August 25, 2005; Posted: 4:40 p.m. EDT (20:40 GMT) http:www.cnn.com 2005 POLITICS 08 25 roberts.legalese.apindex.html

³ Supreme Court Nominee Judge John Robert’s testimony before the Senate Judiciary Committee.

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