Politics and the judiciary 211Court. Thus the Court came to exercise a formidable power through which
non-elective justices can overrule the decisions of the elected representa-
tives of the people. There are, however, practical and political limits to the
power of the Court. Its composition, and to a great extent its jurisdiction,
are controlled by Congress. The justices are nominated by the president,
and appointed after confirmation by the Senate, holding their office ‘during
good behaviour’. Congress can remove the justices through the cumbersome
method of impeachment, their authority can be restricted, or, indeed, the
Court could be abolished by constitutional amendment. These methods of
controlling or influencing the Court have been attempted, and it inevitably
operates, therefore, in a political context. As its decisions often have far-
reaching political implications, the justices can hardly be unaware, at one
level of consciousness or another, of the role that they play in the political
system. What then is that role?
The Supreme Court as policy-maker
The Supreme Court has made decisions affecting every aspect of American
life, decisions that have shaped the course of development of every sphere
of government activity. It has been the instrument of a great expansion of
the power of the federal government; it has imposed restrictions upon the
powers of the states; it has reached deeply into the economic affairs of the
nation and regulated the social relationships between individual citizens. Yet
the instruments that it has used for this work have been very few. Its major
weapons have been the Commerce Clause, the General Welfare Clause and,
in recent years, the Fourteenth Amendment. The Court has used other pro-
visions of the Constitution to change the balance of powers between federal
and state governments, and between president and Congress, or to place
limits on all of them. These are the War Power, the Treaty Power, the First,
Fourth and Fifth Amendments and the general enabling clause which gave to
Congress the authority ‘to make all laws which shall be necessary and proper
for carrying into execution’ the powers enumerated in the Constitution.
The Commerce Clause, quoted above, provides the most striking exam-
ple of the way in which the Court has taken a brief, vague grant of power
and transformed it into something of which the Founding Fathers could not
have conceived, enabling the federal government to deal with the economic
problems of the modern state. In the early years of the Union the Court
was called upon to decide whether the power to regulate commerce put the
ferries that plied between New York and New Jersey under the control of the
federal government. In 1824, in Gibbons v. Ogden, it decided that it did. Over
a century later, the gradual extension of the Commerce Clause culminated
in the application of federal power to manufacturing industries, to banks,
insurance companies and stock exchanges, to television and radio, to the
production of atomic energy – indeed, to almost every aspect of economic life
that Congress wishes to regulate.