Balance of power might be tipping toward the courts

May 3, 2017

By Emily Gibbens
NNAF News Fellow | University of North Dakota

It might seem as though the Supreme Court is a board of mighty beings that don’t really have an effect on us individually, but the decisions the court makes influence the whole country. The job of this group is to be the final check in the balance between the administration and Congress.

The court has been with only eight justices for more than a year because of the death of Justice Antonin Scalia. The vacant seat was filled on April 7, 2017, when Senate Republicans resorted to using the “nuclear option” to finally confirm Neil Gorsuch as a Supreme Court justice. With only eight or nine justices to decide for the entire country, many question the court’s ability to sway one way or have biases when making big decisions.

Tony Mauro, a journalist who has been covering the U.S. Supreme Court for more than 35 years, said he wouldn’t define the court as being too political or not political enough, but in a category of its own.

Because of their attempt at invisibility to avoid potential biases, the Supreme Court has little use for the news media. It doesn’t have Twitter, it doesn’t often talk to reporters, and as of now, it doesn’t allow cameras into the courtroom. Mauro has heavily campaigned on behalf of cameras in the court for years, with no success.

“Nobody is obliged to talk to me as a reporter,” Mauro said.

He understands the difficult job the justices have, and sometimes not answering questions is in their best interest when it comes to staying neutral. 

Mauro said he believes that each justice comes into the game with his or her own beliefs and prejudices. He said they are all affected by current trends, but because of their duties and obligations, they don’t let it determine how they vote.

An example of one of these trends is Obergefell v. Hodges, which ruled same-sex marriage legal in all 50 states. Because of the undeniable trend within the states, the Supreme Court decided it was time to take over. There were many states that acted before the court’s ruling, and there were several far behind, as well.

“The Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era,” Paul Freund, a jurist and law professor, once said. 

Obergefell v. Hodges is one of the cases where the Supreme Court’s decision didn’t just affect a small group of people in the courtroom. It affected the entire nation.

Mauro noted that the justices try their best to agree upon the right answer, and many times their decisions are unanimous. The justices’ appointments are secure, as they have lifetime tenure, and it is nearly impossible for them to be impeached unless they break a law or are deemed unethical.

Although Mauro said he believes the Supreme Court’s power is quite stable, others argue that it is starting to seem a little unbalanced. 

Rep. Kevin Cramer, R-ND, said he believes the courts have gained too much power over time.

“[T]he Founders intended there to be three co-equal branches of government, and I believe the courts have gained too much power over the years.” 

He used the issue of the Affordable Care Act as an example of the Court’s excessive power. The ACA, or Obamacare as it’s known, was taken all the way to the Supreme Court because the government cannot require all citizens to purchase something. Although the Supreme Court agreed with that, the Court ruled that Obamacare could be considered a tax, therefore it was legal. Cramer didn’t agree with this ruling and said that even the Obama administration didn’t argue that it was a tax. This is another big effect the Supreme Court had on not just a small group, but the entire country. 

As a representative, it is his job to create laws, but he says that becomes difficult when the courts overstep their power and intervene with the laws Congress created.

“As a member of the House, I find it frustrating that the courts seem to have the capacity and the ability to impose their authority onto our authority,” Cramer said.

Although he has frustrations with their power, Cramer said he believes the court is quite stable because of lifetime appointments and the diversity among the justices. He said the protections taken to keep it balanced are adequate, and that the justices all have their own philosophies, but for the most part, are able to remove themselves from political affiliations.

The way the Supreme Court is set up makes it difficult for the justices to let their own beliefs get in the way of their decision making.