The Supreme Court is undoubtedly the most undemocratic and the most frustrating American political institution. And given the sorry state of Congress and the presidency, that is saying a lot.
Much of this frustration has to do with the fact that justices are the modern-day equivalent of monarchs: they rule for life and are answerable to no one. If you don’t like their decisions — and most Americans do not like many of the recent rulings of what is now an ultra-conservative court — then all you can do is wait for one of the justices to die or retire and then hope for the best.
Many Americans probably believe that this is just the way supreme courts work in a democracy. But in fact the highest courts in other democracies often work quite differently — and in ways that give citizens and legislators more control over these courts’ decisions.
For example, virtually no other democracy in the world appoints supreme court justices for life. They use either term limits or age limits. These arrangements serve to create regular turnover which in turn helps to ensure that justices do not become too out of touch with the public and prevents one group of justices from ruling over the public for many decades. A poll conducted in May found that two in three U.S. voters supported term limits for justices, which means that there would be considerable support in both parties for this reform.
Other countries also differ from the U.S. in the ways they can limit the power of their highest court. For instance, in the U.S., the Supreme Court virtually always has the last say on how the Constitution is interpreted — as when they ruled that the Second Amendment protects the rights of individuals, not just militias, to own guns.
If members of Congress disagree with this interpretation, there is little they can do about it. In other democracies, however, legislators that disagree with their courts’ view of their constitution can more easily amend their constitutions to ensure that the legislature’s view prevails. This option is rarely possible in the U.S., because our Constitution is the hardest one in the world to change. It requires three different supermajorities (two-thirds of both houses of Congress and three-fourths of the states) to enact an amendment.
In contrast, several Nordic countries allow amendments to be approved by a simple majority in two consecutive sessions of their national legislatures, with the intervening election allowing for public input on the decision. This allows these legislatures to have the last say on constitutional interpretation at least some of the time.
Canada offers another lesson on how to limit a supreme court’s powers. Its constitution allows provincial and the federal governments to continue to enforce a law that has been ruled unconstitutional by its supreme court. If a legislature feels that a court’s ruling of unconstitutionality is severely mistaken or unreasonable, it can ignore that ruling for five years, and can renew that decision again after that.
This has not led to a wholesale override of court decisions — this clause has been used only sparingly by a few provincial legislatures — but it does serve as an important limit on the court’s supremacy over a popularly elected legislative branch. If we had a similar arrangement, New York state could continue for five years to enforce the gun control laws that were recently voided by the court.
We need not just look abroad for ways to reign in the power of the court. It turns out that our Constitution contains an often-overlooked method that enables Congress (and, indirectly, the public) to exert more control over decisions made by the court. Article III of the Constitution gives Congress the power to strip away the court’s jurisdiction in particular policy areas of its choosing.
Imagine, for instance, that Congress decided that the court has no jurisdiction over legislation on campaign finance. This would prevent the court from hearing any cases and making any rulings in this area. This would have prevented the court’s enormously unpopular Citizens United decision that opened the floodgates to massive campaign contributions from billionaires and untraceable dark money sources. It is already possible, then, for Congress to make sure that the Supreme Court does not always have the final say in the critical policy decisions that shape our society.
What is needed here are political movements to push for needed reforms like term limits and to pressure Congress to limit the jurisdiction of the court in certain vital policy areas. The way that the highest courts work in other democracies should give us hope that such changes are possible. They show that there is nothing natural or inevitable about an arrangement that gives our Supreme Court justices unaccountable power over the rest of us for life.
Douglas J. Amy is a Professor Emeritus of Politics at Mount Holyoke College and creator of secondratedemocracy.com.