One of the most surprising facts to anyone reading the direct words of the Founding Fathers is the way that they regarded the word “democracy”. Amazingly to modern Americans, the Founding Fathers frequently referred to democracy in an extremely negative light. Benjamin Franklin even went so far as to say, “Democracy is two wolves and a lamb voting on what to have for lunch.” The important point to understand here to not get the wrong impression is what came to mind for the Founding Fathers when they heard “democracy”. To them, democracy meant direct democracy, the rule of mobs, the kind of radical government that soon emerged in the chaos of the beginning of the French revolution. The beheading of individuals based on public anger, the violation of essential human rights in the name of extreme patriotism, that is what the Founding Fathers associated with democracy. As a result, the Founding Fathers set about making a government that would answer to the people, not the mob. This intention led to several notable features of our political structure including the election of senators by state legislatures, the electoral college, and, most significantly, the Supreme Court.

The Supreme Court has come to be a major part of the American federal government, an integral part of the system of checks and balances that prevents any single branch from gaining absolute power. Alexander Hamilton wrote that he believed it would be the “least dangerous branch”, citing the lack of military control or pulpit to manipulate the public. He presumed that the justices, separated from the election process, would be above the petty politics of the other branches and would therefore act as a secure balance against the whim of overzealous majorities and scheming political parties. He was quickly proven wrong in the first case of the Supreme Court where it acted in the manner it does today, Marbury vs. Madison.

In this case, the Supreme Court judged whether it was constitutional for Secretary of State Madison to deny commissions to the slew of judges that John Adams created positions for to maintain the power of his defeated party, the Federalists. The Supreme Court used the case to give itself the power of judicial review, to strike down laws as unconstitutional, which had not been specifically stated in the Constitution. Chief Justice Marshall went on to judge other cases under this principle for three decades, thoroughly reaffirming the power of his own branch of government and expanding the power of the federal government, consistent with the aims of the party he was nominated by, the Federalists, and the president who nominated him, John Adams.

The Supreme Court would continue to be a political football and check upon democracy all throughout its history, up until today. During the pre-Civil War era, Chief Justice Taney attempted to strip all blacks of their national citizenship and prevent the federal government from banning slavery in the territories. During FDR’s presidency it struck down a great deal of the new economic policies that the large majority of the population had elected him on. FDR responded by trying to pack the court with his supporters, causing Justice Robert Owens to support his policies, further disproving the court’s supposed separation from political pressure. More recently the Supreme Court has forced legislation changes upon the nation with the decisions on same sex marriage and abortion, with only the slight majority in approval of its own justices and the American people. The Supreme Court has even gone as far as deciding presidential elections when it halted the recount of Florida votes in 2000.

So is the answer that the Supreme Court shouldn’t exist? Besides the fact that abolishing one third of the federal government would never be tolerated, history indicates it shouldn’t. The positive decisions of the Supreme Court should not be ignored, such as the part it played in enforcing the will of the people with Progressive legislation like Teddy Roosevelt’s trustbusting and FDR’s New Deal. The Supreme Court brought America into a new age of equality by striking down segregation and integrating schools. It has often showed a great degree of bipartisanship also, such as in the case of U.S. v. Nixon, where the whole court unanimously voted against Nixon’s executive overreach, despite half of the justices having been appointed by Republicans and three by Nixon himself.

In the wake of Justice Scalia’s death, America not only needs to consider who will replace him but also to reexamine why it is important in the first place. The Supreme Court only has its current position because America believes that it is good for our country. The people have defended the decision of Marbury v. Madison and it continues to holds today because the people continue to defend it. We need to ask ourselves whether this is still a cause worth defending, whether we want a court acting as an unelected Congress, forcing laws upon half the country without a vote, or a balance upon the other branches, a voice of reason when the Constitution is violated. Do we take the position of Hamilton, that the Supreme Court is a necessary buffer against the mentality of the mob? Or do we change it like the other checks upon democracy that were in our constitution, like the Seventeenth Amendment’s creation of the direct election of senators? For the consideration of this matter the words of another Founding Father, Thomas Jefferson are appropriate: “Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps… The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”