Is the Supreme Court a democratic institution?

Before looking at the Supreme Court, we need to decide what we mean by a "democratic" institution. As this has been an area of study and debate for centuries, we should not expect a clear-cut and short answer. Given the country in question, and the devotion of most of its citizens to the tenet of democratic accountability through direct elections, this could be used as a starting point, but clearly this would then yield a negative answer to the title above - the justices of the Supreme Court are neither directly accountable to electors, nor answerable to a body of elected politicians in either of the other two branches of government. However, we are not simply interested in the appointment procedure, but with the whole legitimacy of the Court in fitting into the system as one of the three branches proscribed for in the Constitution, and this requires an examination of its entire procedures and how it comes to judgements. By looking at all these areas and theories that have been developed to explain the Court's behaviour, we can attempt to ascertain whether what the Court does is compatible with the notions of majoritarian rule and accountability so ingrained in the American idea of the ultimate political system.
As a body explicitly provided for by the Founders, the Supreme Court was always intended to play its part in the system of checks and balances to avoid the dangers of concentrating too much power in an individual branch of government. Nevertheless, it appears at the outset that the notion of members of the Court, who have not been subject to popular approval, constraining the activities of those who have, smacks of double standards. Yet the justices can claim to draw their legitimacy from three sources: firstly, their role as the upholders of constitutionally guaranteed freedoms and rights; secondly, from the review both prior to and after nomination of their suitability for the post by the President in making nominations, and by the Senate who scrutinise all nominations closely; and thirdly from the self-application of judicial restraint in only making decisions when necessary. The contention that the process of nomination and scrutiny is sufficient to ensure an equitable and justifiable basis for the Court's activities can, however, be challenged. As the stage of examination by the Senate has become more public, to the extent of being considered by many a soap-opera in the case of nominee Clarence Thomas, so calls for reform of the process have intensified. Denenberg offers suggestions that range from reducing the tenure of justices from life to a fixed term of, for example, fifteen years, which would ensure independence whilst guarding against judges belligerently holding onto their position when clearly unable to discharge their duties either through old age or poor health. As Bowles rightly points out, the sole qualification for life tenure, that of "holding their offices during good Behaviour" is not sufficient to provide for removal on these grounds. Whilst seeming to be a laudable goal, the drawback is that such a move would require an amendment to the constitution, an action that is difficult enough to achieve at the times of clearest political consensus, given as it needs to gain two-thirds support in both chambers of Congress, and the backing of three-quarters of the State legislatures. Given such requirements for amendments being ratified, Watson and Stookey's assessment that the incorporation of just fifteen amendments in the last 200 years is not an encouraging precedent for such a measure being taken in the future is sobering but realistic. On the other hand, their defence of the Senate operating open sessions seems to be based on the misplaced assumption that there is a role for the public in the appointment process; a role that would be compromised were the Senate ever to hold hearings pertaining to nominations in closed session. They cite Frankfurter and Landis, who held that in a democratic society the public should be involved in the selection of justices for the land's highest court, especially as there is little prospect for the public to act to remove them after appointment, given the assumption of lifetime tenure. But the degree of ignorance exhibited by the majority of the public as to the nature of the proceedings, with most believing prior to experiencing them that they would be "trial-like" rather than incorporating the typical chaos and confrontation of political encounters, suggests that the American public is no more informed as to who the nominees are as to the process they are undergoing, and that in turn indicates an apathy as to the eventual outcomes. It seems unlikely that the endorsement or rejection of a nominee by a Senator would sway large numbers of his constituents into turning out against him when he stands for re-election; a fact supported by continuous declining turnouts in all forms of elections in the US. It is also unlikely that to claim as a key record of achievement in the past session the acceptance or blocking of any particular nominee will appeal to many of the voters either - other issues surely take precedence in the voter's mind. Thus Watson and Stookey's objections to the pursuit of this course of action is undermined. Even if, as they suggest, the public were to be educated into acceptance that the process was inherently political, then this would surely induce an apathetic reaction whereby people felt it was best to leave the decisions up to the politicians, in which case too, the objections to closed sessions fail. This leaves us with the conclusion that if the process currently in place is to be made more consistent with ideas of accountability, it would involve movement to de-politicise the process. This would involve removing the appointment procedure from involving executive and legislative branches - surely an impossibility. The alternative is to accept the responsibility on the political actors, and to develop some form of consultative approach, which could possibly be achieved if the Senate decides to take seriously its constitutional power to advise as well as to give its consent to Presidential nominees.
If the process of appointment of justices is lacking in its democratic qualities, then what of the means by which they reach decisions? There are two issues to be examined here. The first concerns the Court's power of judicial review, and what some commentators such as Berger have seen as the unconstitutionality of an unelected branch handing down unilateral declarations about the constitutionality (or otherwise) of legislation passed by a democratically elected legislature and actions taken by a democratically elected President. Berger argues that in interpreting the Fourteenth Amendment as a mandate to decide issues of segregation and suffrage at a Federal, rather than a state level, the Court was acting against the original intentions of the Founders, who believed in those powers being reserved explicitly for the States, and thus was acting unconstitutionally in using a revisionary power not conferred on it. Berger does not dispute the validity of the judgements, but believes that the way in which they were arrived at poses a dangerous precedent that the ends will always justify the means. His position is vulnerable to Cox's critique, which essentially appeals to the moral integrity of the outcome as justifying any venturing into disputed territory by the Court. Another criticism would be that Berger's position is sheer rule-worship, which in a broadly utilitarian society is at odds with the goal of maximising welfare. Furthermore, as the Court has no powers of enforcement, if it were ever to pass a judgement that was blatantly in defiance of the will of the majority, it could simply be ignored - such was the case initially with Brown. The point is that restricting the activities of the Court is to irrationally ignore the other balances that exist, such as Congress' authority to make exceptions to the Court's appellate function, and the ultimate deterrent of outright opposition. This also conveniently ignores the obvious insight that the Court depends on public approval to carry forward its legitimacy and implement its rulings. Black's observation that the Court cannot prevail if there is public repudiation of its legitimacy further highlights Berger's seeming paranoia about the potential of the Court to act in such a domineering manner. The chances of this happening, given that the Court always has to consider its own standing in the publics' eyes, is minimal. Finally, throughout most of the time when the Court has been exercising its power of judicial review, the other two branches can hardly be held to be paragons of inclusivity in the democratic process. Throughout most of their history, they have excluded large sections of society from participating in the electoral process. Such hypocrisy clearly reduces the force of argument of those who were calling at these times for a more democratic structure to the Supreme Court.
The second area of interest with regard to the Court's activities is over whether its decision-making process is based primarily on precedent or on attitudinal factors. The legal model suggests that the rule of law is key, and justices will act in accordance with those decisions that have been made in the past. The extralegal model says an array of sociological, psychological, and political factors produce judicial outcomes. Segal and Cover claim that they were able to deduce accurate and independent measures of the ideological values of all justices from Earl Warren to the time of writing their article (1989), and claim that the voting patterns of the justices in Supreme Court decisions are consistent with those values determined prior to their appointment, thus providing support for the attitudinal model. This dogmatic support of the extralegal approach is surprising, given that Segal is cited elsewhere as having found through empirical study that the Supreme Court's response to legal (i.e. precedental) factors was consistent over time. George and Epstein's alternative study concludes that neither the legal nor the extralegal approaches were necessarily wrong, but were incomplete on their own. Further, a temporal analysis suggested that precedental factors were more important in the initial stages of an issue's life, whereas as time passed, extralegal variables dominated. This certainly seems plausible - a strict adherence to precedent would suggest that Brown would not have reversed Plessy. Conversely, the supposed evidence for freedom to base decisions on personal preferences - namely the lack of accountability, the lack of motivation to gain higher office, and the fact the Supreme Court is the court of last resort - are undermined by the influence that undoubtedly comes from political actors and the public at large (although not in the latter's involvement in the selection process, but rather how the public's attitude to an issue changes over time being a guiding influence to the justices). Given the politicisation of the Court, through the selection, nomination, and appointment procedure to the decisions they make, it not a large step to suppose that the interests of the population at large are also taken into account when the justices make their decisions, especially as they need the support of those people for their continued legitimacy. This suggests a hidden influence of democracy in the Court's activities, motivated as much by the Court's own self-interest as a moral decision to act in a manner that reflects the view of the majoritarian regime.
Inasmuch as our discussion so far has dealt with one aspect of the Court's justification, it must be remembered in looking at the wider issue that as the Supreme Court acts in an interpreting capacity with regard to the Constitution, it is inevitable that its decisions will be controversial in some respect. It must decide whether the other branches are acting within a framework that can be shaped to suit a myriad of conflicting interests. The Founders felt that a group of elected officials would not be able to carry out this function - whatever the arguments about the drawbacks of that, it is somewhat difficult to envisage a wholesale reversal of it.