Saturday, July 18, 2015

Adamu Kofi Shauku ― The Supreme Court: A Countermajoritarian Galahad?

A.K. Shauku was named a Humane Studies Fellow for the academic year 2011-12. This libertarian award was granted by the Institute for Humane Studies (IHS). The IHS provides support to students and scholars with research interests in individual liberty. A.K. Shauku is a law student at the University of Alabama School of Law and a PhD student in Political Science at the University of Alabama Graduate School.

Adamu Kofi Shauku, a student at the University of Alabama, reflects on the role of the Supreme court, and its approach to judicial interpretation:

"It is a widely held belief among Americans that the appropriate role of the U.S. Supreme Court is to check the majoritarian excesses of the other two branches of American government. The legislative and executive branches of government are elected by majority vote. In the national legislature, members of the Senate are elected by popular vote in their home-states, and members of the House of Representatives are elected by popular vote from smaller sub-state districts. In the executive branch, the President and Vice-President are elected by national popular vote mediated through the Electoral College system. Rule by majority consent is the legitimating principle of each of these branches. But the third branch is different. The third branch of national government is headed by the Supreme Court, a nine-member panel of judges (called “justices”) who are each appointed to life terms by the sitting President with the approval of the Senate. These judges enjoy such privileges as life terms with good behavior and the guarantee of undiminished compensation in order to at least partially insulate them from the pressures of popular politics. This insulation is often described as judicial independence and for most people it means that judicial decisions will be based upon the dictates of the law, rather than the vagaries of political fashion. Says law professor Amanda Frost:

The Constitution grants federal judges life tenure and protections against diminution of their salaries, which insulates them from various political and social pressures. Those guarantees allow courts to make unpopular rulings, to stand up to the other two branches of government without fear of retribution, and to assure litigants that judges are not beholden either to state or federal interests. (2008, 1625)
This distinct organization and expectation with regard to the third branch of national government reflects a commitment to what is often called the rule of law.

The rule of law is contrasted with the rule of men, implying a legal system which is non-arbitrary. Typically, a political system is held to instantiate the rule of law to the extent that its legal rules are general in nature, prospective in operation, and equal in application to persons without regard to suspect classifications. Often, and most practically, the rule of law is understood as a commitment to individual rights, especially those of minorities against powerful and potentially encroaching majorities. But rather than supposing a strict antagonism between majority rule and the rule of law, some scholars conceive of a balancing act where “The rule of law rests, first, on the inability of the one or the few to control the many, and second, on the willingness of the many to leave some scope for universal rights” (Helmke & Rosenbluth 347-48)."

Read more: