Is the Supreme Court Today More Powerful Than the Founders Intended?

It wasn’t always the political power house that we know it as today.

Annie Holmquist | February 26, 2016

It wasn’t always the political power house that we know it as today.
Is the Supreme Court Today More Powerful Than the Founders Intended?

With the high-profile coverage of Justice Antonin Scalia’s death earlier this month, a number of Americans have turned their attention toward the appointment of his replacement. A recent Pew Research poll found that 55% of Americans believe the Senate should move forward with the confirmation process when President Obama appoints his nominee.

Pew also released another interesting bit of information showing the length of time it has historically taken to fill a Supreme Court vacancy. Based on the chart below, Pew noted that recent court vacancies are far shorter than they used to be. In fact, a number of the vacancies in the 1800s took roughly a year or more to fill!

As Pew explains, some of these lengthy vacancies are attributable to political bickering, much like we see today. That bickering largely stems from the power that the High Court now wields.

But in the minds of some of America's founding fathers, the Supreme Court wasn’t supposed to be the political power house that it is today.

During the process of the Constitution’s ratification, several Founders penned the Federalist Papers in hopes of convincing the American public to adopt the Constitution. Alexander Hamilton addressed the subject of the Supreme Court in Federalist #78. In it, he described the Court as harmless and insignificant:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. …

It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”  

Whatever your political views on whether or not President Obama should fill Scalia’s vacancy, does the interest and urgency in the process indicate that the High Court has become more powerful than the Founding Fathers ever intended it to be?

Image Credit: Joe Ravi CC-BY-SA 3.0