How the Supreme Court dilutes democracy

Each June, the American public anticipates the rulings of the U.S. Supreme Court as more than legal decrees; these decisions are frequently understood as what the philosopher John Searle might call "institutional facts" regarding the nature of our democracy. Thus any attempt to question not merely the court's rulings but its very existence is initially disorienting. In a way, doing so is similar to reflecting on the actual value of a $20 bill or the significance of a national border. Money and boundaries derive their utility not from any intrinsic quality related to paper or maps, but because we all agree, consciously or not, that they have a certain collective function. The purpose of this article is to revisit this alleged function.

Sometime in the upcoming days, the court will hand down a decision regarding the constitutionality of a small section in the Affordable Care Act (ACA), also known as Obamacare. Should the court rule that this part of the ACA is unconstitutional, it is widely believed that insurance costs will skyrocket and the ACA will collapse. Thus, in a certain sense, the fate of arguably the largest redistributive program in decades rests in the hands of nine unelected lawyers.

Regardless of one's opinion of the ACA, the fact that the ultimate authority in our democratic polity appears to lie with a handful of judges and not the people (or their representatives) seems profoundly undemocratic. Imagine the surprise of those unacquainted with the history of our government's intricate system of checks and balances when told that citizens of one of the world's oldest democracies let a handful of appointed elites determine the fate of most legislation.

Supreme Court defenders have long argued that a democratic majority cannot be fully trusted with governing itself; the review of legislation by an independent judiciary is a means by which, if necessary, democracy can be saved from itself. Court supporters usually advance either one of two claims to make their case.

On the one hand, court defenders often assert that the court is a necessary check on the majority; it protects the rights of minority groups. My response to this line of reasoning is rather straightforward: For every Brown vs. Board of Education decision (integrating schools), there also seems to be a Dred Scott decision (institutionalizing slavery). In other words, the court is no better than the legislative branch at protecting the rights of minorities. Accordingly, any attempt to defend its existence on the grounds that it prevents a majority from tyrannizing is unconvincing.

On the other hand, some have argued that the court allows democratic citizens to go about their daily lives without constantly monitoring their representatives. The court always keeps a watchful eye on the people's representatives — in essence, it dramatically lessens the political responsibilities of democratic citizens. This is apparently a good thing, because citizens are far too busy to be bothered with politics.

While this vision might be appealing at first glance, it does not come without costs. Disengaged citizens who believe democratic politics do not require anything other than occasional passing interest are likely to ignore politics altogether. Why waste valuable time doing so when the government in essence runs itself? Why pay attention when the most fundamental political questions will be answered by a group of unelected judges?

It is hard to come up with a satisfactory answer to these questions. And this is the problem with the Supreme Court. It creates a detached and unresponsive government that saps the democratic process.

Finally, it is worth noting that these concerns are not all that concerning provided that one benefits from the status quo. But for those who aren't so fortunate, the fact that the status quo persists is far from comforting. The legacy of past injustices continues to plague our society, and unless democratic citizens are awoken from their slumber, most efforts to right historic wrongs are likely to fail. For change requires a critical mass of engaged citizens. But in a society where the Supreme Court rules, the people are disengaged and cannot be bothered to pay attention, much less participate.

Isak Tranvik, of Robbinsdale, is a doctoral student in political science at Duke University.