26th May 1999

(2,693 words)

In what sense is the Supreme Court a third branch of government?

Within this question, I believe that there are two issues that are worth addressing. The first issue to discuss is the sense in which the Supreme Court acts as a 'branch of government'. The second is to ask in what ways can the judiciary be seen as the third branch of government. To clarify, in the first case it is important to ask the extent to which the judiciary acts as a actor in the process of government and how it interacts with the other branches. The second point is too look at the relative positions of each of the branches and to ask if it is correct to suggest that the Supreme Court is in some way tertiary to the executive and legislature. This point is based on Hamilton's idea of the judiciary as the 'least dangerous branch' .

There are various roles of the Supreme Court. The bulk of Supreme Court cases relate to its appellate jurisdiction. As the highest court in the United States appeals from other courts will be expected to find their way to the Supreme Court, and if granted certiorari will be decided upon. In addition to its appellate jurisdiction, the court has original jurisdiction over cases involving foreign diplomats and cases in which a state is a party. Within these jurisdictions are the powers of judicial review. Court judgements are made by referring to statues of Congress or the constitution and can only be made when actual cases are brought before it. When such judgements involve the actions of other institutions of government it is judicial review.

There are two forms of judicial review, the precedent for both stems from the case of Marbury v Madison (1803). The first form of review is when it is judged that an executive action is not within the realm of legitimate authority given to the executive by statute or the constitution, as President Truman found when trying to nationalise private companies. The second form of judicial review, one not yet possible in the UK, is when legislation is struck down as being unconstitutional. The supremacy of the constitution means that if judged to be contradicted by legislation (state or federal), the courts can revoke the validity of the statute. Again, the court cannot do this of its own accord, there must be a concrete case presented to the court where a citizen is suggesting that legislation is undermining their constitutional rights. This point is important as it can be shown to suggest that the court is not free to search the statutes for laws to overturn.

Judicial review is not the only ability that a court has of affecting policy. Interpretation of any statute (constitutional or not) that is made by the court can have major implications in the actual implementation of laws. Whilst it is the role of the judiciary to interpret legislation in the way that it was intended, great scope is given to judges to interpret laws as they wish. Because the American system is based on common law, however the judges interpret legislation will set precedents for other courts. This will therefore show the way that legislation will be implemented. For the legislature of overturn such interpretations, they must produce new legislation to replace that which was misinterpreted by the judiciary. If the judiciary interprets the constitution in a way that the other branches don't approve, they must amend the constitution, something which requires great consensus within the legislature and executive.

There is little question that through judicial review and interpreting statutes the judiciary can be seen as affecting policy. There does still remain the question as if this allows it to be counted as a 'branch of government'. This point arises because other institutions, such as the federal bureaucracy also affect policy, yet are not universally seen as branches of government. The distinction that can be made is that the power of the judiciary comes directly from its constitutional role. The judiciary's authority to make decisions is not dependent on other institutions, as the bureaucratic departments are on their political masters. Although appointed by the president and Congress, life terms mean that there is little outside control over judicial action. This independence to shape legislation and ability to invalidate the actions of other actors means that the judiciary can clearly be seen as part of the separated government of the federal government, with Neustadt's 'separate institutions sharing powers'.

This leads to the second, more contentious part of this essay. This is whether or not the Supreme Court can be seen as the third branch of government. The point that is worth making is that the court does have the capabilities to be the strongest part of government. The court, constitutionally, is able to strike down the actions of either of the other branches, with its decisions being the most binding. Against this view is the suggestion of Cox that because the courts have neither the 'purse nor the sword', their ability to enforce their decisions depends on the voluntary compliance of the other two branches. In addition, the unelected nature of the judiciary in the democratic system means that their use of authority against those elected if used in excess might lead to questions of its legitimacy.

The suggestion that I wish to put forward is that the Supreme Court can be seen to act towards both of these extremes. The court is sometimes active in exerting its authority over the other branches and at other times it recognises the dominance of the other institutions. Further, it can be seen that the Supreme Court itself decides when it wants to enter the political fray and when it simply allows itself to act as a neutral enforcer of the will of other branches. The argument is therefore that the Court decides to act as the third branch of government when it chooses to and can act as the dominant branch at other times. Against this view is a suggestion that as simple referees of the constitutional game, active judiciaries are the response to bad law making. This suggests that the court does not decide for itself when it wishes to be active, but instead is forced by the need to uphold the constitution. I will try to show cases of judicial inconsistency which illustrate how this is not the case.

For evidence of the judiciary's activity in policy making, many look towards the decisions made by the court with relation to abortion. This is interesting in many ways. For example, without constitutional amendment, this is an area that the other two branches of the federal government cannot legislate on, due to the legislative rights given to the states. Also, this case shows how a creating Supreme Court can read the constitution in order to put forward clear matters of policy. This point is made by Richard Hodder-Williams when he discusses the various ways that the term 'political' can be applied to the Supreme Court . The constitution does not mention rights of unborn children and more importantly, the constitution does not directly mention the right to privacy. The relevance of this is that the court, based its abortion decisions on the precedent set in the case of Griswold v Connecticut (1965) . In Griswold, a case concerning the availability of contraception, Justice Douglas pronounced that although not explicitly stated in the constitution, a right to privacy may be found in the "penumbras, emanations or shadows" of various guarantees of the Bill of Rights . This right to privacy laid the foundations for the abortion ruling in Roe v Wade (1973) .

It is worth spelling this out because it shows the discretion that Justices have in making political decisions. Not only can they interpret the meaning of the constitution, but they can also add parts to it that they believe would have been included had the framers got around to thinking about them. Further, once they create such doctrines they have great ability in selectively apply them. Although Roe v Wade showed a woman's right to privacy allows her to have an abortion, it would not allow her to take illegal drugs in the privacy of her own home. The case of Bowers v Hardwick (1986) shows this further. Here, the Supreme Court rejected the right to privacy as grounds for overturning a Georgian law banning sodomy. It must be acknowledged that the Rehnquist court that made the Bowers decision had somewhat different composition than the Burger court that ruled in Roe v Wade. This, however, should not make a difference. If the court was to abide by its constitutional role, surely the passage of two decades wouldn't lead to such great inconsistencies in constitutional readings. The only possible explanation is that the Supreme Court, or the sum of its parts, has its own policy agendas. This being the case, the threat of constitutional amendment is not a large enough check from the other branches to prevent the judiciary using this clearly legislative power. The decision in the Griswold case implies that there are two ways of amending the constitution. One requires the consent of four hundred Congressmen and a president. The second apparently requires only the opinion of five Supreme Court judges. Surely, if the Supreme Court wanted an explicit right of privacy in the constitution, they should have lobbied the other branches to get a constitutional amendment, preferably one which could differentiate the privacy of a patient-doctor relationships from sexual relationships of consenting adults. Instead they used the conventions of judicial precedent to make unchecked political decisions.

One suggestion that is said to limit such action by the judiciary is that because of the need for a real case to come before the court, the Supreme Court's hands are somewhat tied as to the areas that they can rule in. This, however, is simply not the case. In 1992, over seven thousand cases were filed in the Supreme Court, of which less than two hundred gained certiorari . The entrenched legal culture of the US (in comparison with other democracies) means that there is no shortage of cases being put forward by lawyers, often subsidised by affected interest groups. Norma McCorvey, the Jane Roe of Roe v Wade had such little connection with the case that she was informed of the outcome by accident when shown a newspaper by a friend. The point is that there are no shortages of potential Norma McCorveys in the United States. Cases can be found by those who wish to change policy through the courts rather than their elected officials. The breadth of cases presented to the court means that the Supreme Court can be seen in fact to have the ability to exercise judicial review over almost any executive action or piece of legislation, state or federal.

There is, however, a problem in condemning the politicisation of the judiciary in this way. As one man's terrorist is another man's freedom fighter, so a judicial decision might be able to be seen as either a wonderful interpretation of the constitution or, as a wilful act of policy making by unelected judges. As Cox suggests, such judgements are often dependent on 'whose ox is being gored'. Liberals greatly criticised the decisions of the Hughes court during the New Deal era, yet these judges were applauded as upholding the constitution by conservatives. The exact opposite can be seen to be the case when looking at the civil rights decisions of the Warren court. This creates a hiding place for the judiciary. Although they are able to have a great impact on policy, allowing unchecked powers which match the other branches (suggesting that they should be seen as a primary rather than tertiary branch) they are able to hide behind the mask of simply interpreting statutes. This mask creates an illusion of a policy-neutral umpire on the peripheries of government. There is no clear indication that a judge who sees the constitution as a living document, rather than following a strict constructionist line is overstepping their authority, but by doing so they will inevitably be creating policy, yet still suggest that they are simply interpreting.

Supporting the notion of the judiciary as a tertiary branch of government is the suggestion that judicial activism occurs sporadically. Major cases such as those on civil rights and abortion bring the court to prominence, but it must be noted that for much of the time, as Henry Abraham notes, the court is relatively docile. In fact, judicial activism appears to occur in cycles. There is not the need to explain here why this happens, but it is vitally important to observe that it does occur. When the court is inactive, it can be clearly seen to be the third branch of government. This inability to act can be evident by either not granting certiorari to controversial cases, or by simply ruling to support a more conservative position regardless of common law precedents, as was seen in Bowers.

In addition to this, it might be suggested that to be seen as a dominant part of government, its decisions should have a great effect. This relates to the point regarding the inability of the Supreme Court to brandish either the 'sword or the purse'. Often, unless there is compliance from other branches, the court's decisions are left as simply that, decisions. This was highlighted by the Warren courts landmark rulings regarding civil rights which started with Brown v Board of Education of Topeka in 1954 . In 1963, nine years after Brown, less than half of a percent (0.45%) of black students went to Southern schools where whites were present. This showed the limited effect of judicial decisions compared to legislative actions. After legislative action, through the Civil Rights Act of 1964, the percentage of black children attending integrated schools in 1970 had increased to 85.6 percent . This shows that although the Brown decision was heralded as a great use of judicial power, its direct impact was minimal on actual policy. This does emphasise caution in suggesting the Supreme Court should be anything other than inferior to the other branches.

In all, the Supreme Court acts as a judiciary which acknowledges that it is sometimes able to act radically to affect policy, but often chooses not to. The lack of democratic accountability (short of high crimes and misdemeanours) forces Supreme Court judges to be nervous of being too strongly opposed to elected officials. This was eventually seen when the Hughes court eventually backed down against FDR. This somewhat accounts for the suggested cyclical nature of judicial activism which allows the judiciary to be viewed at different times as having a different place in the governmental hierarchy.

The first part of this essay showed that clearly the judiciary does not act in a policy-neutral way and its independence means it must be seen as a 'branch of government'. The second part, however, gives a mixed impression of whether this is a prominent or tertiary place in federal government. Judicial superiority is limited by choosing not to act but also limited by the opportunity to amend the constitution. It did, however, take a civil war to allow for amendments to overturn the slavery decision of the Dred Scott case of 1857. The most topical case of this kind relates to current moves to produce a constitutional amendment to ban flag burning to overturn the Supreme Court's decision in United States v Eichman (1990) . It is an interesting observation that the Supreme Court is far more likely to overrule state legislation than it is federal legislation. This relationship with the states allows the judiciary to legislate in areas that the other branches of the federal government are forbidden from acting in. This must elevate the judicial importance somewhat.

Finally, in the post war period, every court has overruled more Supreme Court decisions than Acts of Congress . This recognition of judicial inconsistency must make it a weaker force in the separated system, allowing for it to be described truly as the third branch of government.