The Supreme Court

The President commands the military. Congress controls federal spending and writes the laws. The Supreme Court has neither. It cannot deploy troops, collect taxes, write a budget, or campaign for public support. Its members are unelected and serve during “good Behaviour,” which has effectively meant life tenure unless they retire, resign, die, or are removed through impeachment. Yet five justices can invalidate laws passed by Congress, block actions taken by presidents, overturn state policies, and redefine the meaning of constitutional rights.

That is a remarkable amount of authority for an institution Alexander Hamilton once described as the “least dangerous” branch of government. In Federalist No. 78, Hamilton argued that the executive possessed the sword, Congress possessed the purse, and the judiciary possessed “neither FORCE nor WILL, but merely judgment.”

The modern Supreme Court suggests that judgment can become extraordinarily powerful.

The Constitution itself never explicitly states that the Supreme Court may strike down laws as unconstitutional. That authority developed through judicial review, most famously in Marbury v. Madison in 1803. Chief Justice John Marshall argued that because the Constitution is the highest law, courts must refuse to enforce ordinary laws that conflict with it.

That reasoning created one of the most consequential powers in American government: the ability of unelected judges to invalidate decisions made by elected officials.

The obvious objection is democratic. Why should nine people who never face voters have the authority to overrule Congress, presidents, governors, and state legislatures?

The strongest defense is that constitutional government is not supposed to operate through majority rule alone. Certain rights are intentionally placed beyond the reach of ordinary political majorities. If constitutional protections disappeared whenever 51 percent of voters opposed them, they would not provide much protection at all.

That is part of why judicial independence exists. Justices do not need to worry about reelection, polling, campaign donors, or immediate political backlash. In theory, that gives them the ability to enforce constitutional limits even when doing so is unpopular.

Brown v. Board of Education is one of the clearest examples. In 1954, the Supreme Court held that racial segregation in public schools violated the Equal Protection Clause, despite intense political support for segregation across much of the South.

But Brown also demonstrates the limitation of judicial power.

The Court could declare segregation unconstitutional. It could not physically integrate schools. When Arkansas officials resisted desegregation in Little Rock in 1957, President Dwight Eisenhower ultimately sent federal troops to enforce federal court orders.

The Court could interpret the law. The executive branch had to enforce it.

That distinction helps explain what actually makes the Supreme Court powerful. Its authority depends less on physical force than on institutional acceptance.

Presidents generally comply with court orders. Congress changes policies after laws are invalidated. States alter their laws after Supreme Court rulings. Lower courts treat Supreme Court precedent as binding. Government officials operate under the assumption that the Court’s interpretation of the Constitution carries legal authority.

The Supreme Court therefore depends heavily on legitimacy.

Legitimacy does not necessarily mean popularity. The Court can issue deeply unpopular decisions and still remain powerful. What matters is whether government officials and the public continue to accept that its rulings are authoritative even when they disagree with them.

That makes the Court unusually vulnerable in one sense. Congress has appropriations. Presidents control executive agencies. The Supreme Court produces opinions. Those opinions matter because the rest of the political system agrees to treat them as law.

The distinction between judicial review and judicial supremacy is also important. Judicial review means courts can determine whether laws violate the Constitution in cases before them. Judicial supremacy goes further by treating the Supreme Court’s constitutional interpretation as effectively binding on the rest of government.

Over time, the United States has moved much closer to the second idea.

That development has enormous political consequences because the Court decides questions involving abortion, voting rights, gun rights, religious freedom, executive power, campaign finance, affirmative action, federal regulation, and presidential immunity. Supreme Court appointments therefore shape public policy long after the presidents who make them leave office.

A justice appointed at 50 could influence American law for another thirty years.

That helps explain why confirmation hearings have become so politically intense. Americans do not vote directly for Supreme Court justices, but they increasingly vote with the Court in mind. Presidential candidates campaign on the kinds of judges they will appoint. Senators campaign on whether they will confirm or reject those nominees. Advocacy groups spend heavily on judicial nominations.

The Court remains unelected, but the politics surrounding it are deeply electoral.

Its composition is also less constitutionally fixed than many people assume. The Constitution creates a Supreme Court but does not specify that it must contain nine justices. Congress has changed the size of the Court multiple times throughout American history, and the number has remained at nine since 1869.

Congress also retains important powers over the judiciary. It establishes lower federal courts, controls much of the judiciary’s funding, can regulate parts of the Court’s appellate jurisdiction, and can propose constitutional amendments that ultimately override Supreme Court interpretations. Justices may also be impeached and removed.

Still, these checks are intentionally difficult to use.

If Congress could easily remove judges or reverse decisions whenever it disliked an outcome, judicial independence would mean very little. At the same time, making the Court highly insulated allows a small number of people with lifetime appointments to exercise enormous influence over national policy.