The Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal and state court cases that involve a point of federal law. The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the U.S. Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.
As we read the writings of Alexander Hamilton and Thomas Jefferson, we find that the Founders feared a lack of oversight of the Supreme Court. Indeed Jefferson opines. ‘Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps … ‘.
Looking at our Declaration of Independence we find that grievance #9 against the King of England was that his judges had too much loyalty to the crown.
Historically, our government has taken significant steps to reduce the level of bias of Supreme Court judges. Because bi-partisan support for court nominees was expected or mandated, those with politically extreme views were not confirmed. That does not mean that they had no political bias. All nine votes in Gore v Bush were quite obvious long before arguments were heard before the court.
And in modern day America, a bi-partisan vote is no longer necessary to confirm Supreme Court judges. Obviously biased and openly biased judges now sit on the Supreme Court. This alone increases the animosity between political parties.
It is logical that oversight over a biased Supreme Court is now, more than ever, in the best interest of our democracy.
Ultimately the decision is; do the people control the government and the leaders of that government or do the government and its leaders control the people. One path perpetuates a democratic government. The other path leads us in the direction of a dictatorship.
60-40 vs majority of 9 potentially biased judges.
Our Constitution does not say or imply that the court may be proactive.