The Nameless and the Powerful

September 20, 2012

A national survey conducted by recently put focus on most Americans’ lack of knowledge about the Supreme Court. Nearly two-thirds of Americans cannot name one Justice currently serving on the Supreme Court. Not even one. While their names may not immediately come to the forefront of most citizens’ minds, one has to hope that the decisions made by the Roberts Court are a little more recognizable. Chief Justice John Roberts, by the way, was the most recognizable on the Supreme Court with 20 percent of respondents naming him.

Since 2010, the Supreme Court has made decisions affecting U.S. citizens in a number of ways. With Wal-Mart v. Dukes (2011), Justices ruled 5-4 that a group of women could not bring a class action lawsuit against Walmart, thereby making it more difficult for any group to bring a class action lawsuit for discriminating employment practices. Also in 2011, and also by a 5-4 margin, the Justices decided in ATT Mobility v. Concepcion that mandatory arbitration clauses with class action bans were perfectly acceptable, thereby denying many consumers access to court. This June the Supreme Court garnered national attention, praise and criticism for its ruling on National Federation of Independent Businesses v. Sebelius, known more popularly as “Obamacare.” The ruling was another 5-4 decision.

But in 2010, a split court determined that corporations are people and with this election cycle, the nation is taking notice of just how drastically this 5-4 decision has affected the political landscape. The Citizens United v. Federal Elections Commission decision has brought unprecedented spending by Super PACs and has changed politics as we know it. According to the Center for Responsive Politics, 72 percent of political advertising spending by outside groups in 2010 came from sources that were prohibited from spending money in 2006. That’s more than two-thirds of all spending. And that is around the same percentage of Americans who cannot name a single Supreme Court Justice.  In addition, the Center also reported that the percentage of spending coming from groups that do not disclose their donors has risen from 1 percent during the 2006 mid-term elections to 47 percent.

And if the current gridlock in Washington D.C. does not abate, the chances of the Supreme Court taking on the role of the nation’s decision chief policy maker will only increase. A recent article in the New York Times  says that congressional overrides of Supreme Court decisions simply do not happen anymore. The Times points to research by Richard L. Hansen in a paper titled “End of Dialogue? Political Polarization, the Supreme Court, and Congress.” Were this check-and-balance working as intended, the citizen-elected Congress would enact laws to nullify unfavorable Supreme Court decisions. However, this check between Congress and the Supreme Court is happening with less and less frequency. These days, Congress has difficulty governing itself, leaving little ability to take on the Supreme Court. In the Times article, Professor Hansen is quoted as saying, “Congressional overruling of Supreme Court cases slowed down dramatically since 1991 and essentially halted in January 2009.”

So with each passing congressional term, as the country becomes more polarized and the parties become more entrenched in their own political views, these nine practically nameless judges wield an increasing amount of power. And more often than not, the Justices mirror the divisive mindset of the country and Congress, meaning it is the vote of one Justice that makes the difference. One Justice most citizens could not even name.


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