In 1831, two young Frenchmen visited America, charged by their government with investigating the American prison system. They finished in nine months. They also spent those months months investigating “all the mechanisms of this vast American society,” as the leader of the pair, Alexis de Tocqueville, put it (Tocqueville vi). The result is Democracy in America, a book that implicitly critiques the French government and society of Tocqueville’s time through its largely favorable review of American government and society.
One American institution that struck the twenty-five-year-old de Tocqueville as quite different from anything in Europe was the United States Supreme Court. He was amazed: the Supreme Court can tell the rest of the American government what to do. By contrast, all European governments, no matter their form, show “the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice” (123). He pointed out that, unlike European tribunals, when the Supreme Court hears cases between, say, New York and Ohio, it “summons sovereign powers to its bar.” And although Tocqueville didn’t mention it, he might have added that the 1803 case of Marbury v. Madison settled early on that the Supreme Court has the authority to declare acts of Congress invalid if it finds that they are without Constitutional basis. In Tocqueville’s time, this kind of authority in the hands of an independent judiciary was unknown in other modern societies.
Tocqueville was so taken with the Supreme Court’s role that he felt that its reputation and preservation were more important than that of the other two federal branches of government, the presidency and Congress. Yet, more than the other two branches, the court was also more subject to injury from popular disdain. The justices are the “all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular contempt,” he claimed, pointing out that the Supreme Court must act consistently with the nation’s understanding of the rule of law (124). We, on the other hand, often see our Supreme Court as the least important of the three branches and, because of the justices’ lifetime appointments, the least subject to adverse popular opinion.
We have some good authority to support our view. Tocqueville’s equally famous countryman, the political philosopher Montesquieu who lived a century before Tocqueville, thought courts were inherently powerless. Montesquieu influenced the framers of the American Constitution by updating the Roman notion of separation of powers, giving us the executive, judicial, and bicameral legislative branches we recognize today. In so doing, however, Montesquieu claimed that the the judicial branch is “in some measure next to nothing” (Huntington 392). After all, nobody (we would say today) comes to a game to see the umps.
Which Frenchman is right? Is the United States Supreme Court the most or least important branch of American government?
In exploring this question, it may be helpful to make two distinctions. The first is between power and function, and the second is between power and authority. Clarifying those three terms may suggest how the framers understood sovereignty and the rule of law as well as the Supreme Court’s role in maintaining this understanding.
We generally think of the Constitution as balancing three primary governmental functions. The Constitution separates functions, however, only to the extent that such a balance of functions achieves the document’s greater goal — a separation and balance of powers. The Constitution is designed to keep sovereignty away from any single part of government, whether it be a branch of the federal government or whether it be the states vis-a-vis the federal government. For instance, as American political scientist Samuel P. Huntington pointed out, “the judicial power to declare what law is became the mixed judicial-legislative power to tell the legislature what the law cannot be” (393 – 394). The Supreme Court also has a quasi-executive role since it can pass on the constitutionality of many executive decisions, such as the suspension of habeas corpus or the issuance of executive orders. The Constitution gives the court more than a judicial function in order to balance some of the powers the Constitution acknowledges.
This sharing of functions to create a true balance of power isn’t a modern invention. In fact, Huntington argued that the American government’s separation of powers is a holdover from the late medieval period before the rule of law began to be replaced by the rule of men. Beginning in the seventeenth century, the nations of continental Europe placed their sovereignty in kings while the English Civil Wars and Glorious Revolution eventually caused sovereignty to be placed in Parliament. The American colonists, however, kept to Tudor-era notions of the supremacy of common and natural law. As British historian Albert Pollard pointed out, “Americans instinctively revolted against the doctrine of the sovereignty of the State” (Huntington 388). At the time of the American Revolution, Americans were still resisting the modern “tendencies toward the substitution of sovereignty for law,” as Huntington put it (386). Americans kept Elizabethan notions of law, just as the the residents of the Chesapeake Bay’s Tangier Island retain certain Elizabethan speech patterns.
It would be helpful to define both sovereignty and the rule of law. Sovereignty, the jurist Jean Bodin says, is the notion that there is “a supreme power over citizens and subjects, unrestrained by law” (Huntington 384). Sovereignty, then, is the assertion of power over others, a concept that political theorist Hannah Arendt said hinders freedom: “If men wish to be free, it is precisely sovereignty they must renounce” (Arendt, Between, 163). The rule of law, however, is the opposite of sovereignty. The rule of law is not to be confused with “law and order”; indeed, the significance of rule of law is in its scope and not its force or strength. Political Theorist Francis Fukuyama defines the rule of law as “rules that are binding even on the most politically powerful actors in a given society” (11). In other words, the scope of law must bind even kings and Parliaments. The American founders held to notions of natural law — law that is discovered by man but not generated by him — precisely to counter modern notions of sovereignty.
This idea of rule of law as exercising something like sovereignty points to the distinction alluded to earlier between power and authority. Power includes coercion, but Arendt said that authority cannot be equated with or rely on coercion — or, for that matter, even persuasion. In fact, she said that “practically as well as theoretically, we are no longer in a position to know what authority really is” (Arendt, Between, 92 – 93). She described where the political idea of authority came from — the founding of Rome — and she described also how the Roman Senate, even when it had no power, was consulted by Rome’s powerful rulers for its blessing on legislative or executive measures. The Roman Senate was the guardian of Rome’s founding, and its task was to measure every governmental action against that founding (120 – 122). That gives us some notion of what authority is even if the West no longer generally experiences it, as Arendt suggested.
Where, then, did authority in the West go when Rome fell? The Catholic Church took on the Roman Senate’s role; Arendt was fond of quoting a pope writing to an emperor at the end of the fifth century: “Two are the things by which this world is chiefly ruled: the sacred authority of the Popes and the royal power” (126). This pope-king tandem lasted in the West for over a thousand years, Arendt asserted, but it collapsed during the Reformation and the Scientific Revolution. One can infer this collapse in the preoccupation with governmental legitimacy in the writings of the period’s political thinkers. Political theorist Alexander S. Rosenthal pointed out that Richard Hooker’s question “‘what conditions make the power to rule legitimate?’ became particularly important in the sixteenth and seventeenth centuries” (107). Arendt believed that governments since then have frequently resorted to force — to power — as a tragic means of compensating for their lack of authority.
One modern institution attracted Arendt’s attention because of its authority, however — the American Supreme Court. Its lack of power and its lifetime appointments make it “the true seat of authority in the American Republic” (Arendt, Revolution, 192). She compared the Supreme Court directly with the Roman Senate, pointing out this small distinction: instead of giving political advice, the Supreme Court gives legal interpretations (193). She approved of Woodrow Wilson’s characterization of the court as “‘a kind of Constitutional Assembly in continuous session’” (192). The Supreme Court, then, gives the government and statutes the authority generated by the Declaration of Independence’s signers and the Constitution’s framers at our nation’s founding.
The Supreme Court’s powerlessness and its authority mean, of course, that both Montesquieu and Tocqueville are right. To maintain its authority — and thereby to maintain the entire government’s authority — the Supreme Court must not make mistakes regarding fundamental law that would undermine its standing with the American people. As Tocqueville warned, “If the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war” (124). He was right: within twenty years of Democracy in America’s publication, the Supreme Court’s infamous Dred Scott decision helped to bring about the American Civil War.
When the Supreme Court adjudicates, it must consider its function as the source of our federal government’s authority. If it fails to rule in accordance with the Constitution and natural law — i.e., in accordance with the rule of law — it will cause a large segment of the American people to lose their trust not only in the judicial branch but in our entire system of government.
Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. Penguins Books, 2006.
Arendt, Hannah. On Revolution. Penguin, 2009.
Fukuyama, Francis. Political Order and Political Decay: from the Industrial Revolution to the Globalization of Democracy. Farrar, Straus and Giroux, 2015.
Huntington, Samuel P. “Political Modernization: America vs. Europe.” World Politics, vol. 18, no. 3, 1966, pp. 378–414. JSTOR, JSTOR, www.jstor.org/stable/2009762.
Rosenthal, Alexander S. Crown Under Law. Lexington, 2008.
Tocqueville, Alexis de. Democracy in America. Edited by Isaac Kramnick, W.W. Norton, 2008.