The U.S. Supreme Court was created by the Constitution of the United States and was established in 1789 and recognised under the Judiciary Act of 1789 (Smentkowski 2019). When the Founding Fathers were drafting the Constitution, they were against having a central government. As a result, when writing the Constitution, they decided that it was important to have an institution that had certain checks and balances on the legislative and executive branches of government. This, therefore, resulted in the Founding Fathers bestowing federal judicial power in a single Supreme Court (Smentkowski 2019). As stated in Article 3 of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court…” (US Constitution, Art 3).
In terms of the structure and autonomy of the Court, the Supreme Court is fully liberated in terms of its decision-making and is independent from the executive and legislative branches. In addition, they also have the power to interpret and apply the law to any case, including cases that deal with national law, treaties, and cases affecting representatives of the state without any pressure from other establishments (US Constitution, Art 3).
Appointment of Justices to the Court
The justices of the Supreme Court are appointed by the President, with the advice and accord of the Senate. Nonetheless, the fact that they are appointed by the President does not wield any influence when it comes to the decision-making of the justices or their autonomous nature. This is because of the fact that other institutions of government are restricted from influences the justices in any way, once the judges are appointed (Smentkowski 2019). This appointment process of the justices is affirmed by Article 2, Section 2 of the Constitution. Aside from other institutions not being able to influence justices, the independence and the autonomy of the justices are further ensured given their job and financial security. Judges in the United States are life-time appointees, meaning that they cannot be removed from their position until their time of death. This is recognized by Article 3 Section 1 of the Constitution where the term “good behaviour” within in the Article indicates that justices cannot be removed at a specific age (US Constitution, Art 3; Busch 2018). In addition, justices are also compensated above average, where the amount they are compensated, while it can increase, it cannot decrease. This is recognised by Article 3, Section 1 of the Constitution: “The Judges, both of the supreme and inferior Courts…shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office” (US Constitution, Art 3).
This is important to consider as it prevents the other two branches of government from influencing the judges by threatening to remove them from their positions, threatening their salaries, or bribing the justices. For example, because justices have the security of tenure, where they cannot be removed from their position unless by retiring, resigning, impeachment, or death, it prevents justices from being corrupted or siding with the legislative or the executive due to the fear that they’ll lose their position. In the same way, because they are compensated way above average, where this salary cannot decrease, it prevents the justices from being bribed, or the executive or the legislative threatening to decrease their salary, which would put their financial security at risk (Gur-Arie & Wheeler 1999: 134-135).
Removal Process of Justices
There are four ways in which a judge can be removed from the Court which includes retirement, resigning, impeachment where they are convicted by the Congress, or death. This is established by Article 3, Section 1, where the term “good behavior” within the Article indicates that justices are to serve lifetime appointments, unless they decide to retire or resign. With relation to judges being removed in cases of impeachment, this is established by Article 2 Section 3 of the Constitution: “Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, trust or Profit under the United States” (US Constitution, Art 2).
Separation of Powers
The autonomy and the power of the Court is further affirmed in that not only are they co-equal to the executive and the legislature branches, but they are also distinct from these other two branches of government This is an important addition to the autonomy of the Court as it prevents a single branch wielding too much power, whereby it can then control or corrupt the other branches. For example, while the appointment of justices falls under the authority of the President, this power is balanced by the fact that the appointment of justices must be first accorded by the Senate. Similarly, while the legislative has the authority to make laws, this power is checked through the authority of the President to veto any law passed by the legislative branch. Likewise, while the Supreme Court has authority to deem laws as unconstitutional, this power is equalised through the ability of the legislative to be able to amend the law and overcome the obstacle of unconstitutionality (Mount 2010). These powers of the three branches of government are outlined Article 1, Article 2, and Article 3 of the Constitution respectively.
Judicial Review Powers of the Court
Furthermore, given that the Court also holds the power of judicial review, it further broadens their autonomy and independence. Judicial review is the ability of the Court to to review a legislation and deem it as unconstitutional, if it finds that legislation being passed violates the rights of individuals that are protected under the Constitution or the statute. Although the Constitution itself does not assert that the Court possesses judicial review powers, it was established in the case Madison v. Marbury that it in fact, does. In this case, the Court ruled that it is the right of the judiciary to say what the law is, given that the Constitution gave them the authority to interpret and apply the law (Overholser & Jamieson 2006: 1). In addition, the Court also has the authority to review statutes and treaties to ensure that they are consistent with the Constitution (Rupp 1977: 288). This is recognised by Article VI, Section 2 of the Constitution. In terms of the types of judicial review, the SCC possesses abstract review, concrete review by ordinary courts, and concrete review by individual complaint.
Access to the Court
All individuals and government have access to the Court. Whereas individuals can appeal their case to the Court, after exhausting lower court remedies, the government is also enabled to put forth Constitutional questions to the Court for clarification purposes. Nonetheless, the Court can also hear cases directly, if it believes that the case deals with an important constitutional question. This is established by Article 3 Section 2 of the Constitution.
Political Impact and Analysis
To analyze the Court’s political impact within the area of equal rights, mainly in terms of same-sex marriage rights, I will be mainly examining two cases; Windsor v. United States and Obergefell v. Hodges. In Windsor v. United Stated States, the Court nullified the Defense of Marriage Act (DOMA) and extended benefits to legally recognized same-sex couples in, where in Obergefell v. Hodges, the Court legalized same-sex marriage in all 50 states of the United States while also extending its own powers.
Windsor v. United States was a civil rights case, which dealt with the question of whether same-sex couples who were legally married under state law were also to be recognized as legally married under federal law (Archibald 2014: 696). The case began when Windsor was told that she had to pay over 350,000 in federal estate taxes upon inheriting her spouse’s estate (Archibald 2014: 698). The is because though her marriage was recognized in the state of New York, it was not federally recognized under Section 3 of DOMA. In other words, had her marriage been federally recognized, she would not have been required to pay anything in federal taxes (Thayer & Worley 2013: 469; Schwartz 2010; Johnson 2010). In response, Windsor took legal action by challenging Section 3 of DOMA, arguing that it violated her constitutional right of equal protection as guaranteed by the Fifth Amendment, given that she was being treated differently on the basis of her sexual orientation (Archibald 2014: 699). Upon the case reaching the Supreme Court, in a landmark decision, the Majority found Section 3 of DOMA as unconstitutional. Not only did the Court find that DOMA was contrary to the equal protection clause, guaranteed by the Constitution, but it also infringed upon liberty interest, guaranteed by the Fifth Amendment (Archibald 2014: 699 – 700). The Court reasoned that DOMA singled out same-sex couples in that it advocated that those who were in same-sex marriages were lesser than those who were not. As such, the Court found that the federal statute was invalid as the State is obliged to protect the dignity and personhood of those in marriage, not denigrate them (United States v. Windsor 2013: 20; Cruz 2014: 506).
This ruling of the Supreme Court was extremely significant and impacted politics immensely. In this case, the Court impacted politics and was quite powerful because the Court expanded the meaning of rights of same-sex couples and completely nullified DOMA, which led to the reform of over a 1000 federal statutes (Archibald 2014: 696). For example, the Supreme Court’s ruling meant that same-sex couples who were legally married under their state law were now able to obtain the same benefits as those enjoyed by heterosexual couples. Apart from that, this decision of the Supreme Court also meant that the marriages of the same-sex couples were to be recognized federally. In addition, this case also showcased the Court’s judicial review power, mainly concrete review by individuals. This is because after exhausting all judicial remedies, Windsor applied her case to the Supreme Court, where the Supreme Court made a ruling on the case. This, in essence, showcased the political effect of the Court’s constitutional review in that the Court’s ruling had a formal legislative impact in that the Court decided on a complete annulment of DOMA, thus invalidating the entire law. It also showcases the Court’s judicial review powers in that after the Court ruled DOMA as unconstitutional, the Government accepted the Court’s ruling without any dispute. This is evidenced by the fact that following the Court’s ruling, the Obama administration commenced extending federal benefits to same-sex couples that were otherwise only enjoyed by heterosexual couples. For example, the Social Security Administration extended social security spousal benefits for same-sex couples, which was something that was not protected by law prior to the ruling of the Supreme Court in Windsor (Smith 2014: 8-9). In addition, the Obama administration also announced that same-sex couples who were federally employed were eligible to apply for many benefits that were before only enjoyed by heterosexual couples including retirement benefits, dental, health and vision (Hicks 2013).
Moreover, this decision was also extremely important as by the Court ruling in favor of same-sex couples, it extended benefits and changed the laws in an area which that the Court had previously been reluctant to do so and deferred decisions to the Government. However, this ruling demonstrated that the Court was not afraid to interfere in Governmental policies if it infringed upon the rights of individuals.
Nonetheless, even though the Supreme Court’s ruling in Windsor was extremely significant as it extended several benefits to same-sex couples, its ruling only extended to those who were in lawful marriages. In other words, the Supreme Court’s ruling had no impact on the laws of the states that had banned same-sex marriage. However, this aspect of the law changed in 2015 in the case of Obergefell v. Hodges. Obergefell v. Hodges demonstrated the impact and the power of the Court as the Court not only expand the meaning of law and rights concerning same-sex couples, but it also increased its own powers. In this case, the Court ruled that the right to marry is a fundamental right that is protected both by the Due Process Clause and the Equal Protection Clause under the Fourteenth Amendment of the Constitution, where the banning of same-sex marriage concerned the latter (Isaacson 2015: 537). In fact, the Supreme Court specified in this case that the Constitution grants individual equal dignity, which is what the plaintiffs are mainly asking for in this case (Yoshino 2015: 147).
This case was extremely significant in terms of affecting politics as the Supreme Court’s ruling led to the expansion of meaning of rights of same-sex couples in that it established the legality of same-sex marriage in all of United States, where it obligated all 50 states to legally recognize and honor out of state same-sex marriage licenses and extend all rights that are enjoyed by heterosexual couples to same-sex couples. In addition, Windsor v. United States and Obergefell v. Hodges further impacted politics and further showcased the Court increasing its own power in that within this area, while the Court repeatedly had the opportunity to expand the law in its case law, it did not do so because of the legal tradition. In all of the history of the United States, same-sex marriage was always looked down upon, where it was illegal in the majority of the states in the United States. In fact, in the early 70s, the Supreme Court of the state of Minnesota in Baker v. Nelson had held that refusing to provide marriage licenses to same-sex couples was not a violation of the U.S Constitution. In the late 90s, as discussed above, parliament passed DOMA, which prohibited the federal Government from acknowledging the unions of same-sex couples. It was not until 2004, where numerous states began providing marriage licenses to same-sex couples, indicating some progress towards the legalization of same-sex marriage. However, these marriage licences were later nullified by the courts. While some states began to legalize same-sex marriage in the late 2000s, such as California in the case of Kerrigan and Mock v. Connecticut Department of Public Health, which was later overturned by a national referendum, real change in the issue of same-sex marriage arrived in 2013 in the case of Windsor v. United States and in 2015 in Obergefell v Hodges. This is because as explained above, the former extended benefits to same-sex couples whose marriages were recognized federally, where the latter obligated states to recognize all same-sex marriages in the United States thus establishing the legalization of same-sex marriage and instituting that treating same-sex couples differently was a violation of the Constitution.
The Supreme Court further expanded its powers, in that in deciding this case, the Supreme Court outweighed the democratic process, despite the state arguing that there wasn’t enough deliberation on the topic (Obergefell v. Hodges 2015: 181). The state argued that before the Court makes a decision in this case, there should be somewhat of a discussion on this issue, regardless of whether it is an academic debate or a debate between members of parliament. This is because the state argued that the issue was that of a matter that related to politics, and as such, only those who were elected by the majority of the population should have the power to decide. However, the Court found that while change is to occur through democratic processes, as stated by the Constitution, this is not the case if the Court uncovers a new fundamental right (Obergefell v. Hodges 2015: 181). It ruled that if it is the case that individuals are harmed, where that harm is protected by the Constitution, individuals are welcome to “invoke a right to constitutional protection”, even if it is the case where the majority of the public or the legislature disagrees with them (Obergefell v. Hodges 2015: 24). This was of huge significance as the Court essentially found itself a leeway in hearing cases, regardless of whether there has been a national deliberation on the issue, thus significantly increasing its own power. This ties into the concept of judicialization of mega-politics in that the Court weighted in on an important policy decision, which was that of whether same-sex marriage should be legalized.
This paper has analysed the Supreme Court of the United States and its impact on same-sex marriage rights. First, this paper highlighted how the Court was established and further explored the Court’s powers, review types, and its appointment and removal processes. After, this paper examined the political impact of the Court through the cases of Windsor v. United States and Obergefell v. Hodges. It emphasized how these two cases were extreme signs of the Court’s impact on politics and its power as while the Court ruled in the former that same-sex couples who were legally married in their respective states were to be recognized federally, leading to new legislations being adopted and the extension of several rights, it recognized same-sex marriage as a fundamental right in the latter and obligated all 50 states to legally recognize same-sex marriage.
While the proscription of same-sex marriage was deemed as unconstitutional by the U.S Supreme Court, leading to new legislation being adopted, it is important to emphasize the fact that this mainly occurred due to the Court’s significant power and autonomy. For example, in Russia, same-sex marriage is proscribed. In fact, violence and discrimination is allowed in Russia against same-sex couples, where same-sex marriage has even been described as “a very dangerous sign of the apocalypse” (Herszenhorn 2013). Moreover, the head of the Moscow Registry Office has previously stated that anyone who attempts to partake in same-sex marriage in Russia will fail as the people of Russia are guided by the federal law which clearly outlines that marriage consists between a man and a woman (Interfax-Religion 2011). This situation stands similarity to the case of U.S in that DOMA also defined marriage as that between a man and a woman. However, while Supreme Court in the U.S struck down the DOMA and deemed it as unconstitutional, the Russian courts have constantly upheld the proscription of same-sex marriage, despite same-sex marriage being guaranteed by Articles 8 and 12 of the European Human Rights Convention which Russia has ratified (Sputnik-News 2010; Council of Europe 2019). This, as one International Commission of Jurists report outlined, has to do with the fact that there are no safeguards against justices being appointed for indecorous purposes and that political sensitivity plays a significant role in the promotions of justices (International commission of Jurists 2014).