William_T._Bianco,_David_T._Canon]_American_Polit

The role of the Court in our political system 525

The judicial branch as a whole contains a basic paradox: it may be simultaneously

seen as the least democratic and most democratic branch.^84 The least democratic part

is obvious: federal judges and many state and local judges are unelected and are not

accountable to the voters (except indirectly through the elected leaders who appoint

them). But the judiciary can also be seen as the most democratic branch. Cases that are

brought to the courts come from the people and, as long as the legal criteria for bringing

a case are met, the courts must hear those cases. Although people have the right to

petition “the government for a redress of grievances,” there is no guarantee that

Congress or the executive branch will listen to them. Of course, only a small fraction of

the cases brought to the Supreme Court are heard, so the antidemocratic charge carries

more weight at the top. However, the court system as a whole may be seen as providing

an important outlet for participation in our political system.

Whether the Supreme Court goes against our elected leaders—that is, is the Court

a countermajoritarian force in our political system? —is also a complicated question

to sort out. The Court is activist on many issues, exercising judicial review, but on

many other issues it defers to the elected institutions. Sometimes an activist Court

defends minority interests on issues such as criminal defendants’ rights, school

prayer, gay rights, and flag burning, but that is not always the case. Is the Court acting

undemocratically when it exercises its power of judicial review (or, as critics would say,

“legislates from the bench”)? Or is it playing its vital role in our constitutional system

as a check on the other branches, as with some of its recent cases concerning the legal

rights of enemy combatants in the War on Terror and the early versions of President

Trump’s travel bans?

The answers depend somewhat on one’s political views. Conservatives would

generally applaud the activism of the Rehnquist and Roberts Courts, while liberals would

The Court has been an important

protector of minority rights, including

in the civil rights era. This picture

from 1953 shows people waiting in

line at the Supreme Court to hear

oral arguments in Brown v. Board of

Education. But at other times, the

Court has supported the will of the

majority.

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