How powerful is the US Constitution

Guest comment: What makes the Supreme Court so powerful

The death of senior judge Ruth Bader Ginsburg (whose maternal grandparents emigrated from what was then Austria to the USA in 1902) led to a hard political argument in the United States about her successor. But what makes the US Supreme Court such an object of desire for both political camps? What is actually so supreme at the US Supreme Court?

Whether the US Supreme Court is "the most powerful court in the world", as US constitutional lawyer Alexander Bickel has called it, could be debated for a long time. In any case, the fact is that for what three highest courts have been set up in Austria - the Supreme Court for Criminal and Civil Matters, the Administrative Court for Administrative Matters and the Constitutional Court - in the USA there is only one highest court, namely the Supreme Court.

The last word

In a global comparison, Israel's or India's Supreme Court as well as the German Federal Constitutional Court in Karlsruhe are courts of law with far-reaching powers and great influence. All three of them make decisions that have significant consequences in their respective legal systems and states. But the USA is one of the - if not the - leading powers in the world, and the Supreme Court in Washington is the court through whose decisions the face of the USA has so far been shaped: Whether the end of racial segregation, the impunity of abortion, the question of the admission of same-sex marriages or the result of the US presidential election in Florida (and thus the election victory of George W. Bush in 2000) - all these decisions are ultimately based on decisions of the US Supreme Court. And in all of these cases the Supreme Court has taken the place of the legislature with its decision.

The Austrian legislature knows an easy way out in the event that the constitutional court (VfGH) threatens to repeal a law: it elevates the endangered law to constitutional status and thus removes it from the control of the VfGH. This is what happened especially in times of large coalitions, which were equipped with the necessary two-thirds majority in the National Council. The legislature in the USA does not have this way out. Because an amendment to the US Constitution not only requires a two-thirds majority in both houses of Congress (Senate and House of Representatives), but also the approval of three-quarters of all US states (i.e. 38 of the 50 states). This is such a high hurdle that of more than 11,000 attempts to amend the US Constitution, only a handful have been successful. To be precise: In the more than 200-year history of the US constitution there have been exactly 27 "amendments" (ten of them in the "Bill of Rights", a catalog of fundamental rights from 1791).

For the US Supreme Court, however, that means: He speaks the last word. For example, if he decides that segregation in US schools is against the US Constitution (as in 1954 in the Brown vs. Board of Education decision), then that means the end of segregated schools; no legislator can take this back. Only the Supreme Court itself could correct itself through a later decision. So a lot of power in the hands of nine judges.

Nine judges for life?

But does it always have to be nine judges who - appointed for life - speak right from the bench of the Supreme Court? Not at all. The US Constitution says nothing about the number or the qualifications for the judge's office. Just that there has to be a Supreme Court. Even the venerable, column-reinforced building in the immediate vicinity of the US Capitol, as we know it so well from many Washington photos, only existed since 1935. Until then, the Supreme Court had to be content with premises in the building of Congress.

A simple law is enough to determine the number of judges in the US Supreme Court. In fact, their number has fluctuated between five and ten in US history, up from nine since 1869. The attempt by President Franklin D. Roosevelt in 1937 to increase this number - for obvious political reasons - failed spectacularly. The court had overturned several of the Roosevelt administration's economic laws - which the president tried to use to pull the United States out of the Depression. As a result, Roosevelt wanted to increase the Supreme Court to 15 members, but in the Senate this bill received a clear rejection of 70 to 22 votes.

But with the death of Judge Bader Ginsburg - and a possible "lightning" appointment of a successor shortly before the US elections - the discussion about the number of Supreme Court judges has gained new relevance: the time has come, the number of highest judges to increase? A democratic majority in the upcoming Senate elections at the beginning of November together with the presidential election on November 3rd could pave the way for this. But as we already know from Greek mythology: Great care is required when opening Pandora's box. What seems politically opportune today can take bitter revenge in the future if the majority situation changes.