American Judiciary System Stripped to Its Core: Does not Electing Justices Make the Process Undemocratic?

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Regarding its ability to accurately and properly represent the people of the United States, the American body politic can be perceived through two windows: descriptive or agency representation. Glancing outside to catch a glimpse of the Supreme Court of the United States, looking at the judiciary through agency representation may seem more reflective of the national population than descriptive representation would. Yet, a problem overwhelmingly remains for both camps: a large consensus argues that the Court holds too much power and may not be as representative as one would believe. The fundamental criticism of the judiciary branch lies on the basis that justices are not elected, therefore invalidating them as agents of the people and consequently not democratic at all. In this paper, I will attempt to assess the extent to which these two concepts of representation fulfill the functions of American democracy in the Supreme Court and define its effectiveness as a national institution reflective of the people.

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Descriptive representation is the idea that representatives should mirror the demographic makeup of the population that are politically relevant and not just their viewpoints. These demographic reflections are broad categorical labels such as gender, religious affiliation, ethnicity, etc. Agency representation arrives from the concept that representatives should act as an agent for their constituents, prioritizing their interests over appearing or living similarly to them. Evaluating the Supreme Court requires the establishment of two things: the definition of American democracy, at least for the purpose of this writing, and the importance of descriptive and agency representation in the context of American democracy’s proper operation.

Firstly, American democracy is abstract yet can be narrowed by two ideas: direct and indirect democracy. The general system of the U.S. federal government falls under indirect, or representative, democracy, which the Founding Fathers intended for they feared the political ignorance of the common citizen. In the contemporary civil atmosphere, it may be an advantage in contrast to direct democracy to have a representative system with such an expansive populous, in numbers, degree of diversity, and locational spread. American democracy then is of the indirect category, founded on the principle that society is to be governed by a few that are elected by the people. The people, whom are holding their officials accountable through job security, i.e. reelection, are therefore the ones governing themselves in actuality.

Secondly, both descriptive and agency representation have importance to the functioning of the U.S. government, but with the definition of American democracy set, indirect obviously takes place over direct, at least in my opinion. Descriptive representation is a visionary goal yet is difficult to reach in a government with roots in concentrated privilege and oppression, no matter how improved or improving the system seems to be. It has importance in the sense that governmental institutions should appeal to the oppressed and under-represented, which is the primary reason the Department of Justice promotes congressional majority-minority districts for oppressed groups to be more adequately represented (Losco and Baker, 263). But the U.S. is a representative authority that focuses on giving voice to the interests of the people, which could strike two birds with one stone by addressing minority issues. Agency representation is then the more significant of the two styles in relevance to American government, specifically the Supreme Court though this will be questioned later on.

To put the two concepts of representation into perspective, look at the makeup of each Supreme Court justice. Of the nine, six are Catholic while three are Jewish. In descriptive representation, this system doesn’t exist on the population’s behalf. Americans are composed of 20.8% of Catholics and the adherents of Judaism account for just 1.9% of us (Pew Research Center 2014), compared to two-thirds of the justices following Catholicism and one-third Judaism. The numbers are off. The men of the Court also outweigh the women by two-thirds, drastically misrepresentative of the near 1:1 ratio for gender in the United States. Lastly, but notwithstanding the numerous other ways to categorize the American population, seven-ninths of the justices are Caucasian, one-third is of Hispanic descent, and one-third is African-American. The ethnic composition of the Supreme Court is the exception to the descriptive misrepresentation, coming close to reflecting the colors and origins of the people (US Census Bureau 2014), but not precisely enough nor without disregarding other ethnicities and nationalities.

Continuing on course, in agency representation the judiciary poses a problematic case, no pun intended. As stated before, the Supreme Court can be seen as more representative in terms of agents rather than being a demographic reflection of the population. The problem, however, is that the nine justices aren’t held accountable by the sentiments of the public. They aren’t held to a standard of operation like Congress or the executive branch because justices are appointed by the sitting president in times of judiciary vacancy and they’re able to serve until death. The Court essentially has permanent job security without any checks and balances. The justices, therefore, cannot be evaluated as agents of the people and the people cannot be seen as constituents.

The members of the Supreme Court must be seen as interpreters of legislative and executive actions on both the federal and state level in accordance to the Constitution and the Court’s epic history of precedents. Be it that the Court isn’t an effective, or precise, national institution in representing the people, then what foundation does it have that allows it to impact an entire nation of millions? “Constitutional laws and politics are certainly not the same thing,” said Vikram D. Amar, dean of the University of Illinois College of Law, “but they are interrelated (NYT, 10/5, A13).” The Supreme Court derives that power via the Constitution, granted by the first generations of Congress early in the nation’s history, which allows it to hold a stake in our political process and our lives. The Founding Fathers intended on the judiciary branch to be the weakest, yet left the amount of power up to Congress (Conover, Lecture 3). However, if the power of the Court directly originates from the Constitution and the Court has the enumerated power to interpret that Constitution, then the Court can adjust its own powers without restraint. But it can be checked.

Not only is the representativeness of the Court looking questionable now, so is its authority. The powers that the nine justices can allot themselves can be restricted or expanded by their own will, sure, but those powers can only have strength within writing. It’s left up to the enforcement of these rulings by the executive branch for them to hold water, which the executive may order to ignore if he or she so dared. The legislative branch can also pass through law attempting to find a loophole of a Court ruling they dissent with. Though these actions by both branches are unconstitutional in themselves, the idea that there would be no consequences because the Supreme Court has no authority of enforcement over its own rulings could reject any fears of a strictly partisan polarized Court that either decides over a multitude of cases with ridiculous ideological bias or the process of decisions stagnates due to uncompromising attitudes and internal affliction.

Still, in the last thirty or so years, the Court, just as every other level and degree of American government, has been becoming increasingly partisan. The current court is the first of its kind: it is historically split along partisan lines, exemplifying the growing polarization of American politics, with just Justice Kennedy sitting at the Court’s “ideological fulcrum” (NYT, 10/5, A13). The voting blocs of the Court make up Chief Justice Roberts, Scalia, Thomas, and Alito on the right side; Ginsburg, Breyer, Sotomayor, and Kagan compose the left. Justice Kennedy is the sole swing vote, preventing the Supreme Court in becoming party dominated and essentially blind to the other half of the United States (Losco and Baker, 361).

During its last term, the Supreme Court was willing to judge over cases regarding the effects of law on individual lives, and it looks to continue doing so this session (NYT, 10/5, A22). Recently, for example, the Court heard oral arguments in Foster v. Chatman, to decide on the racialization in peremptory challenges barring certain citizens from sitting in a jury where they would be optimal jurors for the fate of the defendant (NYT, 10/2, A20). At such a pinnacle time in the twenty-first century and with governmental institutions having a larger impact on individuals each year, the United States needs bipartisan cooperation across all boards of government for prosperity and unity’s sake. Congressional gridlock is gruesome, but to me, the institution that is essentially in charge of the fundamental values of this nation becoming agents of political bias is more worrisome.

Assessing the system of the U.S. Supreme Court, it fails in both respects to descriptive representation and agency representation. The latter of which the Court most closely embodies, yet neither of which it embraces because of the Constitutional intent for the Court to be agents of legislative and executive actions, not of the common people’s interests. With regards to the functioning of American democracy, the Court may be effective in its protection of the Constitution and even at protecting individuals, yet due to the advent of the recent extreme polarization in the American political sphere, the operation of the Court seems to grow dismal. As with the functioning of Congress, the Court seems evermore divided by political interest and only one justice, Kennedy, has the Constitutional philosophy to straddle the middle of the road and avoid bias. In summation: the Supreme Court isn’t precisely a representative body of the United States, and though it may be effective in some rights, partisan polarization is harming the integrity of the judiciary branch.

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