Chapter 14:
The Courts
Synopsis
This chapter begins with a discussion of Clarence
Thomas's appointment to the Supreme Court and his
influence on a number of court decisions related to
issues of race. The story illustrates a shift in the
court's ideological center, which is unaffected by
representative institutions and majority rule. The story
also illustrates the role that a single individual can
play in that institution. Judges must choose between
competing values. Freedom, order, and equality vie for
dominance in the nation's highest court.
The Constitution created only one court, the Supreme
Court, and sketched the rough contours of federal
judicial power. The real design took shape in the first
Congress. (Much of that handiwork can be seen in today's
court system.) Congress created federal (national) courts
that would coexist with the courts in each state but
would be independent of them. But the judiciary was not
viewed as a powerful branch of government until John
Marshall was appointed the third chief justice in
1803.
Marshall's opinion in Marbury v. Madison
(1803) established the power of judicial review, the
power to declare acts of coordinate branches (and acts of
state government) void because they violate the
Constitution. This power appears to conflict with
democratic theory because an unelected branch can trump
an elected branch in the name of the Constitution.
The federal courts form a hierarchy with the Supreme
Court at the apex, the courts of appeal in the middle,
and the district courts at the base. Note that most
litigation arises in state courts; federal courts have
limited jurisdiction to decide criminal and civil cases.
Policymaking in the courts occurs at all levels, but it
is most pronounced in appellate courts, where the
emphasis on judicial opinions enables judges to create
precedents.
The Supreme Court deserves special consideration because
the value conflicts inherent in American democracy often
end up before the Court's nine justices. The Court is a
national policymaker with far-reaching impact. The Court
exercises influence in part through the power to set its
own agenda; it is aided in this function by the solicitor
general, who represents the federal government before the
Court.
Presidents can influence policy after they have left
office by attempting to appoint judges who share their
values. Although this is true across the federal
judiciary, it is especially pronounced for appointments
to the Supreme Court. Judges (some more than others)
exercise political power. Separation of powers and checks
and balances frustrate representative government. Groups
that failed to secure or protect their interests in the
democratic branches can turn to lawyers and the courts.
Pluralist democracy operates when groups press their
interests on the government. The open access provided by
the courts reinforces pluralist democracy.
Though judicial power runs counter to democratic theory,
policies emanating from the Supreme Court rarely seem out
of step with majority sentiment or the trend toward such
sentiment. There are some exceptions to this observation,
such as the abortion decision, but recent decisions and
changes in the court presage a change on the abortion
issue, perhaps one closer in step with majority
views.
Judges confront new issues calling for the exercise of
judicial power. With open access to the judiciary and the
creation of new rights in the name of the Constitution,
courts increasingly become arenas in the conflicts
between freedom and order and between freedom and
equality.
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Summary
