61

Iviko Khavtasi

Tbilisi Iv. Javakhishvili State University BA Student

THE POLITICAL ROLE OF THE SUPREME COURT OF THE

UNITED STATES UNDER THE SEPARATION OF POWERS

AND ITS MODEL OF CHECKS AND BALANCES

ABSTRACT

The role of the judicial branch in the US checks and balances model of the separation of powers

has never been univocal; An analysis of the epochs reveals that this branch of government has

come together in an interesting and complex way of evolution. The following paper briefly

discusses the basic essence of the US constitutional model, the development of constitutional

review within its framework, key characteristics of the Supreme Court control, along with sev-

eral case-law decisions and the contemporary challenges of the American Supreme Court in a

polarized political climate.

1. THE FIRST WRITTEN CONSTITUTION

“We the People of the United States, in Order to form a more perfect Union,”1 – with these

words begins the first written constitution in the history of mankind, its preamble, this docu-

ment, dated 1787, is one of the shortest and oldest basic laws. It takes into account and is based

on the principles of republicanism, separation of powers and federalism.2

The text of the Constitution along with the Declaration of Independence of 1776 is infused with

the ideas of Thomas Hobbes, John Locke, Charles Louis de Montesquieu and others. The new

state was developed from the colonies of England in accordance with the inevitable values of

life, liberty and property by the American nation. Locke argued that these natural God-given

individual rights were substantially inviolable, therefore depriving of these rights by any gov-

1 See the preamble to the Constitution of the United States., available at:

https://www.senate.gov/civics/constitution_item/constitution.htm [last accessed on November 26, 2019]. 2 “Constitutional Law of Foreign Countries”, Edited by Melkadze O., Tbilisi, 2013, 13.

62

ernment was not acceptable, he called such a corrupted arrangement despotic and did not neces-

sarily consider obedience to the hegemonic government.3

After the American Revolution and the secession from England, the colonies were left without a

central government. It was soon discovered that a weak central government, lacking economic

and military power, could not maintain internal order, this inability was especially noticeable in

the wake of the farmers uprising of 1786 and 1787 (referred to as “Shays Rebellion”).4 The

"Founding Fathers" and the authorities of the individual states absolutely understood this; Dur-

ing the Philadelphia Convention of 1787, which had only to revise the Articles of the Confed-

eration, following Edmund Randolph and James Madison's proposed amendments (the "Virginia

Plan"), they rejected the original purpose of the convention and began working on a constitu-

tion.5 This impetuous, panic-ridden decision is called by some thinkers two steps ahead and one

behind it, "a counter-revolution against popular democratic ideals."6

The developments in Massachusetts turned out to be a truistic argument for the creation of a

strong central government, taming turbulent democracy. The Philadelphia Convention sought to

establish a direct connection between citizens and the central government without the interposi-

tion of the authorities of the states, which the symbolic, nominal central government could not

do under the confederation, consequently, the constitution of 1787 actually created a new nation

and gave rise to a solid and more or less consensual sense of unity between the states.7 The

centralization of political power gradually became legally justified and even legalized by the US

Supreme Court.8

2. AMERICAN NOVATION

The American model of governance was a novelty in its form, defined primarily as an alterna-

tive to British rule.9 The "founding fathers" did not trust the principle of "unity of power", view-

ing it as a remnant of the monolithic state and sharing Montesquieu's view that human nature

was prone to the abuse of power, and that is why the system of government had to be institu-

tional-barrier to control political authority.10 James Madison, in his 51st Federalist Letter, de-

velops a similar concept in which he writes that an interest must be challenged by the opposing

3 Locke J., “Second Treatise of Government, Introduction to Modern Thought”, Book One, Tbilisi, 2014, 247-276. 4 Janda K., Berry J., Goldman J., “American Democracy”, Tbilisi, 1995, 50. 5 Ibid. 6 Elster J., Constitution-Making and Violence, Journal of Constitutional Law, Second Volume, 2018, 27, See citation: Bouton T., Taming Democracy, New York, 2007. 7 Khubua G., “Federalism as a Normative Principle and Political Order”, Tbilisi, 2000, 281. 8 Ibid 282, See citation: Hesse J., Benz A., New Federalism unter Präsident Reagan, Speyer, 1987, 3. 9 William Henry Hirst. “Constitutional Government in the Spotlight: The Origin, Vicissitudes, Problems and Trend

of the American System”, 1935, 16. 10 Sajó A., “Limiting Government”, Tbilisi, 2003, Note 4, 89, See citation: Montesquieu C., “The Spirit of the

Laws”, trans. and ed. Cohler A., Miller B. and Stone H., 1992, 4.

63

interest, that the system of governance and control devices should be a reflection of the human

nature.11

According to the “Founding Fathers”, Government institutions, bodies had to have antagonistic

interest to one another and a permanent desire for constant subjugation of power, their strength-

ening and weakening should have been dependent only on each other, though the confrontation

should not have put the branches in front of politically imbalanced deadlocks, in that case, the

governance system would be technically unsound.12 On the other hand, if the branches of gov-

ernment were to gain too much independence, they would have lost contact with each other, so

interconnection and mutual control are an integral element of the American system.13

Although the provisions of the constitution of the United States are not hierarchical in their

meaning, not even within the framework of the Bill of Rights, the structure of the first written

constitution is the vital foundation, this innovative model of power-sharing is a primal mecha-

nism for the subsequent exercise of various socio-political rights, and hence the formula of

American Exceptionalism.

The governance system of the United States is based on the "seesaw" principle, comparability is

dynamic, and after each election, the balance of power is shifted depending on which forces will

enter the Senate and which party the president will represent, as the court strives to maintain

balance and fluctuates back and forth in order not to lose public esteem.14 In this regard, the

court should adjust the function of a more or less neutral center of gravity on this political arena.

3. THE CASE OF MARBURY V. MADISON AND THE GENESIS OF CONSTITUTIONAL

REVIEW

The epic decision of the Supreme Court in 1803 established a completely unprecedented under-

standing of judicial power, in accordance with the earlier view, judicial power could not go

beyond traditional litigation disputes between parties and the constitutional justice and oversight

of other branches was an uncommon standard. The labor dispute between the employer and the

employee that began in 1800 forever altered the model of American governance and the balance

between the branches of government.15

John Adams and the Federalists, supporters of a strong central government, lost in the tense

election of 1800, the ruling party was first replaced, and Thomas Jefferson, the great admirer of

Russo's ideas, became president, who in each case regarded the exercise of the people's direct

11 Madison J., 51st Federalist Paper, see http://www.federalistpapers.ge/federali51.php [last accessed on November

26, 2019]. 12 Sajó A., supra 10, 92. 13 Honore T., “About Law: An Introduction”, Tbilisi, 2018, 44. 14 Supra 12, 96-97. 15 Mountjoy, Shane. Marbury v. Madison: establishing Supreme Court power, 2009, p. 8.

64

common will as primacy; He considered indirectly “elected” judiciary, including indefinitely

appointed judges of the Supreme Court in the country as the retained representation of the Eng-

lish aristocracy and treachery for the sake of American democracy.16

Just two days before John Adams left the office, he appointed, along with about 60 others

("Midnight Judges"), former Secretary of State John Marshall as a Chief Justice of the Supreme

Court, and William Marbury, a Justice of the Peace in the District of Columbia, the commis-

sions could not be timely delivered to the latter. Jefferson, as the third president of the country,

instructed his new Secretary of State and one of the “Founding Father” James Madison to with- hold the undelivered appointments, based on which Madison repeatedly refused to deliver Mar-

bury’s commissions, the latter appealed directly to the Supreme Court with a petition asking the

court to issue a writ of mandamus forcing executive government to complete the appointment

procedure.17

There was a dilemma before the Supreme Court and its Chief, the Court had no army and did

not autonomously own the finances.18 On the opposite side were President Jefferson, the influ-

ential Secretary of State, and the entire Congress with a majority of opposition forces, so it

would be impossible to execute the decision in this perspective; John Marshall nevertheless

considered Marbury's petition19 and ruled per se miscellaneous decision:

1. Firstly, no one, not even the President, is above the law and the Secretary of State's re-

fusal to issue commissions was clearly unlawful by the executive branch. Accordingly,

where the right is infringed, there must be a priori remedy. It is a separate matter whose

discretionary power is to provide a remedy for the person whose rights had been violat-

ed.20

2. The Court according to the “Judiciary Act of 1789” could have required with a writ of

mandamus the executive authority to issue commissions.21 Marshall saw that the Jeffer-

sonian government explicitly would not enforce such a decision and, in such a case, the

Court would be seen incapable in front of the public sight, consequently, not only a le-

gally valid solution was needed, but also a political one. Accordingly, section 13 of the

Judiciary Act was regarded by John Marshall as unconstitutional because it, unlike Arti-

cle 3 of the Constitution, was unreasonably expanding the jurisdiction of the judiciary. It

16 Supra 12, 278. 17 Hartman, Gary R., Roy M. Mersky, and Cindy L. Tate. “Landmark Supreme Court cases: the most influential

decisions of the Supreme Court of the United States”. 2014, p. 467. 18 “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society”, Federalist Papers #78, Hamilton A., available at:

http://federalistpapers.ge/federali78.php [last accessed on November 26, 2019]. 19 Supra 10, 280. 20 Ibid. 21 See the relevant part of the act:

https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=203 [last accessed on

November 26, 2019].

65

is stated in the text of the decision that the judiciary could not and would not interfere

with the discretionary powers of the executive branch laid down in the text of the Consti-

tution.22 The Court stated that it was not going to disregard the spirit of the Separation of

Powers and its model of checks and balances and therefore self-restrained from the writ

of mandamus.

3. This last part of the adjudication is an unparalleled example of reasonable self-restraint,

self-control by the judiciary. However, Article 2 (2) of the Constitution does not explicit-

ly state the role of the negative legislator as well. Nonetheless, John Marshall believed

that the sole authority of the judiciary was to interpret the constitution, oversee the legis-

lation and Congress, and watch over it.23 Accordingly, the Court broadly defined the ju-

dicial jurisdiction of the dispute settlement and thereby astute enough incorporated, inter

alia, constitutional review.

John Marshall was by no means a philosopher, he went to the office of the Supreme Court with

the malicious intent to balance the radical tendencies of the Jefferson Party, in parallel with the

strengthening of the federal court's role; He was characterized as a result-oriented, tactical poli-

tician with no flawless knowledge of jurisprudential theories; In fact, for a judge to be consid-

ered an influential figure, he must be able to change an established practice and fill the vacuum

of the law, that is, be a pragmatist; vice versa legal formalism is not inherently innovative; The

purpose of formalism as a method is simply to apply and adhere to the principles, that is by

nature rhetorical.24 Consequently, just as the personality of George Washington transformed the

American form of executive power, the third Chief Justice, John Marshall similarly defined the

future role of the judiciary.25

For its part, the institution of the judiciary wisely walked this narrow, dangerous political path in

the years of 1800-1803, did not rely on the status quo and thus did not put up with actual stagna-

tion-capitulation, upheld the spirit of balance and winner came out of the deadlock, its inde-

pendence as a constitutional arbiter has been sharply affirmed, all this under the condition that

until 1935 the Supreme Court did not even have an independent building. Following one proac-

tive move, it gained authority of control of the legislature and self-restricted from usurping

power. At the time, John Marshall, along with several Justices at the federal level considering

the insignificant status of the court, tried not to directly oppose to the high legitimacy branches

of executive and legislative authorities but strengthened judicial control in exchange for reason-

22 Marbury v. Madison, 5 U.S. 137, (1803), paragraph 75, 99, See https://openjurist.org/5/us/137 [last accessed on

November 26, 2019]. 23 Ibid. 24 Richard A. Posner, “Law, Pragmatism and Democracy”, 2003, p. 86. 25 Basic Readings in U.S Democracy, edited by Melvin I. Urofsky, p. 53.

66

able self-restraint.26 More than 200 years later, this case remains a unique example of rational-

ized compromise in the history of the practice of the Separation of Powers.

4. THE CONTROL PARADIGM AND COUPLE OF LANDMARK DECISIONS OF THE

SUPREME COURT

The Supreme Court justices are policy-makers in the United States, their decisions are precedent

and affect legislative regulation not only for the sake of specific cases but also for similar ones

in the future.27 However, the judiciary was particularly weak in the early years of the republic,

the Supreme Court was assembling for only a few weeks for a term, its independence and legit-

imacy was dubious, thus it avoided confrontation with other branches; For illustration, John Jay,

the first Chief Justice, refused to extend his authority in 1801, claiming that the Supreme Court

had not obtained the proper energy, weight and dignity to serve a national cause.28

Article 3, section 2 of the Constitution literally only provided for appellate and, in some cases,

original jurisdiction, not the control of congressional and executive authorities, which, as al-

ready noted, is the result of many years of judicial practice. More than 200 years have elapsed

since the Marbury case, but throughout history, the Supreme Court has often not applied control

authority in order to prevent usurpation of powers acquired. Nevertheless, a few cases in the

history of the Supreme Court of the United States can be noticed, in which the Freedom Guard

institute29 acted as the supreme arbiter and created the country's social, economic and political

weather.

In the modern state governance systems, the domestic and foreign policies are determined by the

highest representative bodies, that is conditioned by popular democratic legitimacy. In the

American system, the Senate has a similar set of powers under Article 1, section 8 of the Consti-

tution as well. Nevertheless, a number of cases can be recalled when Justices of the Federal

Supreme Court set the policy. Whether or not they have abolished the black rob of justices in

this process, which has been reduced to the symbolism of restraint, and whether they have be-

come indirectly quasi-rulers, the answer to this question, because of ideological preferences,

cannot be unambiguous.

It would probably not be an exaggeration to say that the Dred Scott case and the decision of the

Supreme Court in 185730 actually accelerated the American Civil War, exacerbating the mental

26 Supra 15, 11. 27 Supra 4, 397. 28 Ibid 358, See citation McCloskey, 1960, 31. 29 The following words are cut out on the east side of the Supreme Court building: “Justice, the Guardian of Liber-

ty”. 30 Dred Scott v. Sandford, 60 U.S 393 (1857).

67

and physical strife between States of the North and the South.31 The Supreme Court ruled that a

“Negro whose ancestors were imported into this country and sold as slaves” could not be an

American citizen, whether or not he was freed, therefore, the Supreme Court had no jurisdiction

to hear the Dred Scott petition because of procedural grounds.32 Moreover, the Court struck

down the Missouri Compromise of 1820 prohibiting slavery in several states and ruled it uncon-

stitutional; This was the first case of the use of judicial review since the Marbury case, and to

the general public sight, it remains as the embarrassment of judicial activism.33

The Court held that slaves under the Fifth Amendment were considered the property of their

owner and any act depriving the slave owner's property right should be regarded as unconstitu-

tional. 34 The Supreme Court's ruling stoked the wave of protest, abolitionism intensified, and

the situation became so tense that it led to a civil war between the southern and northern states.

(1861-1865).35 More than 150 years passed after Dred Scott v. Stanford and it still remains as

the most inappropriate decision within the Supreme Court history, Chief justice Charles Evans

Hughes later called it “the Court’s greatest self-inflicted wound”.36

The Dred Scott case really damaged the authority of the federal court, its institutional reputation

as a body that was meant to protect freedom and prosperity, constantly had to find a balance

between freedom, order, and equality, in the case of Dred Scott, the freedom of slave-owners

was fatally understood; One of the reason, in turn, was that the will of the majority in America

at that time was not explicitly against slavery. Such polarization between the groups was exac-

erbated by the Court decision, that culminated into a civil war, following the end of the war,

Congress changed the Constitution of the United States with the 13th, 14th and 15th amendments,

and the decision "Dred Scott v. Stanford" was directly superseded. Slavery was abolished by the

Constitution. It is in the light of such resonant decisions that the extent of the Court's substantive

role and responsibility can be seen.

In the sense of changing the social weather, we should also mention the landmark case of

“Brown v. Board of Education,”37 the ruling of the Supreme Court's decision, which prohibited

de jure segregation in the public schools and had a significant positive impact on American

governance from today’s perspective. A class-action suit handed down before the Supreme

Court in 1951 could not be resolved until 1954, the hearing was postponed several times, more-

over, after the first hearing the opinions were radically divided between the justices, they were

faced with real danger and choice, either they could not consider the case or they had to find a

31 Karichashvili I., Dred Scott Case, Methods of Law, Second Issue, 2018,117, See citation: Linderman G.E.,

“Embattled Courage: The Experience of Combat in the American Civil War”, New York, 1987. 32 See Oyez, Dred Scott v. Sandford, available at: https://www.oyez.org/cases/1850-1900/60us393 [last accessed on

November 26, 2019]. 33 Supra 4, 38. 34 Karichashvili I., Dred Scott Case, Methods of Law, Second Issue, 2018, 121. 35 Ibid. 36 Hughes C. E., “The Supreme Court of the United States”, 1928, 50–51 37 Brown v. Board of Education, 347 U.S. 483 (1954)

68

consensus because a decision of such social weight that would divide their opinions would result

in a fiasco for the judiciary and a cause of inevitable confrontation within the community.38 In a

situation like this, the former California governor, Earl Warren, was appointed as Chief Justice

after being nominated by the Republican President but appeared to have a liberal outlook on a

number of issues, among them, he believed that segregation in public schools was violating the

13th, 14th (Equal Protection Clause) and 15th Amendments. Warren, as the administrative leader

of the federal courts, managed to create unity among the justices, and in 1954 the Supreme

Court issued a nine-vote unanimous decision on prohibiting segregation in the public schools.39

With this judgment, the Court changed its “separate but equal” approach and has overruled the precedent of Plessy v. Ferguson,40 whereby the public racial segregation was deemed legal

insofar as the conditions were equally applicable. This judgment of 1954 was not followed by

homogenous reactions and assessments, – for instance, one of the most heavily-cited judges of

the Appellate Court – Judge Learned Hand claimed that through its Brown judgment, the Su-

preme Court has assumed the role of a third legislative chamber.41 Similarly, an originalist

Raoul Berger notes in his book “Government by Judiciary” that the decision taken by the court

under the 14th Amendment was not correct, because the original purpose of 1875 Civil Right

Act and that of the 14th Amendment was not the prohibition of segregation. In addition, the

future Chief Justice of the Supreme Court – William Rehnquist considered that Brown was not

democratic and that the Court should have adhered to Plessy v. Ferguson under the stare decisis

doctrine,42 with due respect to majoritarianism.43

Was the American society ready for a change and who should have responded to this question?

Who should have changed the political climate on a federal level – was it the Senate or the

Court? What did the country’s main law say in this regard? Whether or not did the federal gov- ernment have the legitimate right to intervene within the independence of States and whether or

not should the Court have overruled the precedent – these questions will have different answers

depending on who is responding – whether it is a supporter of judicial activism, a supporter of

judicial self-restraint, a conservative or a liberal. However, the fact remains as follows: the

Federal Supreme Court has made a political decision in 1954, when the Senate was abstaining

38 Karlan P., "What Can Brown Do For You?" (2008), cited Kluger R., “Simple Justice: The History of Brown v.

Board of Education and Black America’s Struggle for Equality”, 1975, 614. 39 Supra 4, 355-357. 40 Plessy v. Ferguson, 163 U.S. 537 (1896) 41 Klarman M., The Supreme Court 2012 Term – Comment: Windsor and Brown: Marriage Equality and Racial

Equality, 127 Harv. L. Rev. 127, 142 (2013) cited Learned Hand, The Bill of Rights at 55 (Oliver Wendell Holmes

Lecture, 1958). 42 (lat. “stand by things decided”) this principle reflects self-restraint and is unknown to other branches of the

government. 43Rehnquist W., A Random Thought on the Segregation Cases, available at:

https://web.archive.org/web/20070615154055/http://a255.g.akamaitech.net/7/255/2422/26sep20051215/www.gpoa

ccess.gov/congress/senate/judiciary/sh99-1067/324-325.pdf [last accessed on November 26, 2019].