Supreme Court Role Debated at USF
With the power to decide everything from abortion rights to who is finally elected president, the United States Supreme Court’s role in government is equal to the legislature’s. Why then, shouldn’t people be allowed to vote them into office?
This question was discussed by some of the foremost experts on constitutional law at a panel sponsored by the USF School of Law’s Law Review at the University of San Francisco Presentation Theater Nov. 2. Asking whether the people’s moral decisions weren’t better articulated in the voting booth rather than by closed-court decisions, the panel sought to clarify why the Supreme Court should be insulated from electoral pressure.
“Once in office, the court has a kind of freedom not to have to worry about voters. Wouldn’t it be more democratic if courts were subject to direct electoral pressure? No, because insulating the court can be a pro-democratic feature,” argued Christopher Eisgruber, a law professor at Princeton University and author of Constitutional Self-Government, a book he published last year defending the court’s role in making political decisions. The USF debate was structured around the arguments Eisgruber made in his book.
USF Associate Law Professor Joshua Davis, who moderated the discussion, was a student of Eisgruber’s at New York University.
“I invited Chris to come because I respect his work so much,” Davis said. “He is doing something astonishing in constitutional theory. He is offering a new interpretation of the Supreme Court and the role it plays in a democracy. Because justices are not elected, most theorists assume the Supreme Court is undemocratic. He shows a vote by a majority is not necessarily the same as democracy.”
Other Constitutional experts who sat on the panel included USF Law Professor John Denvir; Rebecca Brown, a law professor at Vanderbilt University; and Mark Tushnet, a law professor at Georgetown University.
Eisgruber sought to show that the court corrects for biases and the self interests of the voters by deciding moral controversies on moral grounds. Tushnet, however, said the voting public also votes on moral grounds or has a “deliberative position” similar to the court’s and therefore the court should abide by the public’s sentiments.
Of special interest was the panel’s consideration of the 2000 Supreme Court decision in “Bush v. Gore” which upheld George W. Bush’s victory in the 2000 election. Eisgruber said the vote was “atypical” of the court’s normal voting pattern since there was a great deal of partisan incentive for the justices and because they had to make their decision more rapidly than normal. “Bush v. Gore was a manifestation of human fault,” he said. “I’m not inclined to view it as a harbinger of things to come. I’m much more concerned about rulings and legislation after 9/11 concerning personal freedoms.”
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