A select number of seminal Supreme Court decisions are remembered as monumental feats of justice. To name a few, Brown v. Board of Education, Tinker v. Des Moines and Roe v. Wade all bettered the lives of Americans across the country. 

But our generation’s landmark case is famous for other reasons. Dobbs v. Jackson birthed so much outrage not only because of its failure to recognize a woman’s right to bodily autonomy but also because it revealed much of the autocracy woven into the institution of the Supreme Court.

Dobbs v. Jackson was decided along party lines, 6-3, much like many other cases decided by the modern court. Take two recent cases decided by the court, Biden v. Nebraska and 303 Creative v. Elenis — regarding student loans and LGBTQIA+ rights, respectively — both of which were decided 6-3 in favor of the conservative bloc.

Daily headlines, sent straight to your inbox.

Subscribe to our newsletter to keep up with the latest at and around USC.

This kind of polarized dominance is extremely concerning when thinking about the role the court plays in today’s government. Of the three branches of the United States government, the judicial branch has grown to become simultaneously the most powerful yet the least democratic of them all. 

But the U.S. founding fathers envisioned a system of checks and balances to ensure that democracy prevailed, so let us examine how these exist in a modern context.

The legislative branch is directly elected by the people. One of the houses represents the popular vote of its constituents, and term limits allow voters to replace legislators they deem unfit for office by electing a new candidate every two years.

Thanks to the Electoral College, the executive branch isn’t exactly directly elected by the people, but term limits also subject presidents to re-election and hold them accountable to the people. 

And then there’s the judicial branch. Are they elected by the people? No. Are they held to term limits? No. Can they be removed from office without committing a crime? No. 

There’s no doubt that the Supreme Court is the national institution that strays furthest from the will of the American people. But the scary part is that it’s also the most powerful.

Besides justices being appointed by the president, there are no other practical checks on the judicial system. The legislature has never removed a justice from office nor has it altered the size of the court since 1869. And now with Congress in a historically polarized state that kills most attempts at new legislation, the Supreme Court has expanded its power to mimic that of the legislature as well. 

With the ability of judicial review, a power the court gave itself in the decision of Marbury v. Madison in 1803, legislation can essentially be vetoed if the Supreme Court finds it unconstitutional. 

Judicial review allows the court to overstep its responsibility of simply interpreting the law and venture into the territory of originating legislation based on its veto power and the precedent that its decisions create for the future.

The role of creating and passing laws was supposed to be in the hands of the two chambers of Congress, 535 legislators elected to represent their local interests, not a lopsided court made up of nine individuals.

In the words of former Associate Justice William Brennan, “If you have five votes [in the Supreme Court], you can do anything.”

The U.S. is seen as an example of government for the rest of the world, but many other young democracies around the world see the undemocratic nature of our federal judicial system. 

In the United Kingdom, for example, only secondary legislation passed by ministers is subject to judicial review, giving Parliament sovereignty over primary legislation. 

Mexico just reformed its judicial system in multiple ways, including replacing an appointment-based system with a popular vote to select justices and reducing the length of their terms to 12 years. 

The U.S. Supreme Court has grown to amass strengths it was never intended to have, and the American people are the first to suffer from this breach of power. 

But our government was built to self-correct in these times of misguidance. Congress has the power to follow in the footsteps of Mexico and amend our constitution to institute measures that hold the Supreme Court accountable to the people, a necessary action in order to ensure democracy in our country for years to come.