Bill Moyers and Bernard A. Weisberger: The 1 Percent Court

Bill Moyers is a journalist and president of the Schumann Center for Media and Democracy. Bernard A. Weisberger is a distinguished teacher and author of American history.

Why a special issue of The Nation devoted to the Supreme Court? Because with partisan gridlock paralyzing the president and Congress, the Court has more than ever become “the decider”—the most powerful branch of government, and one at the center of a controversy whose outcome may shape the course of democracy for generations to come.

By a paradox both historical and constitutional, the political appointees on the Roberts Court will never have to answer for their decisions to voters like you and me. Nor to the president or Congress: once they are confirmed, the Supreme Court’s justices, like all federal judges, serve for life or “good Behaviour.”

The Constitution’s framers meant to secure the Court against political pressure from the electorate and arbitrary dismissal of its members from on high by presidents dissatisfied with their decisions. As the third branch of a new national government—one whose powers were to be divided to block overreach by any one of them—the Court would be equal to the executive and legislative arms, even though the president appointed its members with the concurrence of the Senate.

That changed dramatically when John Marshall became the fourth chief justice in 1801, shortly before Thomas Jefferson took office. The two brilliant men were bitter rivals, members of opposing parties. Marshall was a Federalist, Jefferson a Republican (no kin to the present GOP). So the supposedly neutral Court has been thrown since its infancy onto the partisan battleground, where it remains to this day....