First, it should be noted that a federal court, by definition is anti-democratic in the sense that the judges themselves are not elected. But at least on the District Court level, the courthouse is open to anyone with a gripe, legitimate or otherwise, so long as that gripe overcomes some relatively basic admission requirements. The Circuit Courts of Appeals are generally obligated to hear all appeals of right. But the Supreme Court, outside of some very narrowly defined instances, has complete control over its docket. It decides whether or not to hear most of its cases and as such they are elitist and anti-democratic.
Lazarus though, sees the snobbery in light of cases from the most recent term:
Who decides whether the death penalty for child rapists is so disproportionate as to be unconstitutional as an instance of cruel and unusual punishment – state legislatures, including the six who have imposed such a penalty, or the Supreme Court, making its own independent moral judgment? According to this Court, this Court decides.Well the last I checked, the Supreme Court was, by role and custom, the final arbiter of what the U.S. Constitution means. I don't agree with the ruling, but it is a ruling. Could it be overturned in teh future, sure--and it might.
If the Food and Drug Administration has approved a medical device, can the device-maker be held liable under state tort laws protecting consumer safety? According to this Court, the federal agency’s decision nullifies the state tort laws.There are still federal consumer protection laws, so I am not sure who loses, state courts who won't have the power to hear these kinds of cases, or federal courts who will have to hear these cases.
In electing state court judges, can the respective political parties choose their competing candidates through a system that gives overwhelming control to the party bosses, or must the processes be more open and democratic? According to this Court, in New York State Board of Elections v. Lopez-Torres, the parties and their bosses can control the process.This decision actually falls in line with a long list of previous precedent giving political parties a fair amount of control over their internal processes.
Lazaurs concludes, in part,
They reflect a Court instinctively averse to having policy made through the unpredictable populist vehicles of litigation and juries, unconcerned about enhancing small-d democracy, and loath to permit exercises of governmental power without the check of judicial review.First, I challenge Lazarus to find any Appeals court or Supreme Court justice who would not prefer that matters of public policy be decided through the political branches. I know that Chief Justice Roberts and Justice Alito are most recently on record about that, but I would wager that Justices Thomas, Scalia, Kennedy, Souter, Breyer, Stevens and Ginsberg all feel that way to one extent or another. All would acknowledge that the courtroom is a very poor place indeed to determine matters of public policy. A court is not a place where compromise is found, in each case there must be a winner and a loser. But legislative and executive policymaking is not founded on absolute winners and absolute losers on each issue.
These instincts are neither universally good nor universally bad. Some of the Court’s worst decisions in recent years, as well as some of its best, have been driven by these leanings. For example, both Bush v. Gore (a terrible decision) and the Guantanamo cases rejecting the Bush Administration’s claims of unreviewable executive power (excellent decisions) alike reflect the Court’s comfortableness with the exercise of judicial power at the expense of the power of other branches of government.
But the courts are obligated, by the Constitution and tradition, to decide cases and controversies and when they do, there is an evitable blowback by people on either side of a public policy issue as to whether a decision was right or wrong (Lazurus himself is a victim of that, citing Bush v. Gore as a bad decision and the recent Guantanamo case as a good one--I for one and I know many others have exactly the opposite views on each of those case). But we as a country, and to a large extent the liberal interests that Lazurus seems to represent, have taken to the courts to determine these important issues rather actually working them out in a proper policy making forum.
So, who is really to blame, the Supreme Court for hearing the cases we beg them to hear, or us for bringing the cases in the first place?