Front Page Titles (by Subject) Elevated Rank That the Supreme Court Occupies among the Great Powers of the State - Democracy in America: Historical-Critical Edition, vol. 1
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Elevated Rank That the Supreme Court Occupies among the Great Powers of the State - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 1 
Democracy in America: Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, translated from the French by James T. Schleifer. A Bilingual French-English editions, (Indianapolis: Liberty Fund, 2010). Vol. 1.
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This bilingual edition of Tocqueville’s work contains a new English translation of the French critical edition published in 1990. The copyright to the French version is held by J. Vrin and it is not available online. The copyright to the English translation, the translator’s note, and index is held by Liberty Fund.
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Elevated Rank That the Supreme Court Occupies among the Great Powers of the State
No other people have constituted a judicial power as great as the Americans.—Extent of its attributions.—Its political influence.—The peace and the very existence of the Union depend on the wisdom of seven federal judges.
When, after examining the organization of the Supreme Court in detail, you come to consider all of the attributions that it has been given, you easily discover that never has a more immense judicial power been constituted among any people.
The Supreme Court is placed higher than any known court, both by the nature of its rights and by the type of those subject to trial.
In all the civilized nations of Europe, the government has always shown a great reluctance to allow the ordinary judicial system to decide questions that involve the government itself. This reluctance is naturally greater when the government is more absolute. As liberty increases, on the contrary, the circle of the attributions of the courts is always going to widen; but not one of the European nations has yet thought that every judicial question, of no matter what origin, could be left to judges of ordinary law.
In America, this theory has been put in practice. The Supreme Court of the United States is the one and only national court.
It is charged with the interpretation of laws and of treaties; questions relating to maritime trade, and all those generally relating to the law of nations, are exclusively within its competence. You can even say that its attributions are almost entirely political, although its constitution is entirely judicial. Its unique purpose is to have the laws of the Union enforced. And the Union determines only the relations of the government with the governed and of the nation with foreigners; nearly all of the relations of citizens among themselves are governed by the sovereignty of the states.
To this first cause of importance, another still greater must be added. In the nations of Europe, only individuals are subject to trial before the courts; but you can say that the Supreme Court of the United States makes sovereigns appear before it. When the bailiff, climbing the steps of the court, comes to proclaim these few words: “The State of New York versus the State of Ohio,” you feel that you are not within the realm of an ordinary court of justice. And when you consider that one of these litigants represents a million men, and the other, two million, you are astonished at the responsibility that weighs upon the seven judges whose decision is going to delight or sadden such a large number of their fellow citizens.
In the hands of seven federal judges rest unceasingly the peace, prosperity, the very existence of the Union. Without them, the Constitution is a dead letter. To them, the executive power appeals in order to resist the encroachments of the legislative body; the legislature, to defend itself against the undertakings of the executive power; the Union, to make the states obey; the states, to repulse the exaggerated pretensions of the Union; public interest against private interest; the spirit of conservation against democratic instability. Their power is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing once the people scorn the law. Now, the power of opinion is the most difficult one to exercise, because it is impossible to know its limits exactly. Often it is as dangerous to fall short, as to go beyond those limits.
So the federal judges must be not only good citizens, learned and upright men, qualities necessary for all magistrates, but they must also be statesmen; they must know how to discern the spirit of the times, to brave the obstacles that can be overcome, and to change direction when the current threatens to carry away, with them, the sovereignty of the Union and the obedience due to its laws.
The President can fail without having the State suffer, because the President has only a limited duty. Congress can go astray without having the Union perish, because above Congress resides the electoral body that can change the spirit of Congress by changing its members.
But if imprudent or corrupt men ever came to compose the Supreme Court, the confederation would have to fear anarchy or civil war.
But make no mistake; the root cause of the danger is not in the constitution of the court, but in the very nature of federal governments. We have seen that nowhere is it more necessary to constitute a strong judicial power than among confederated peoples, because nowhere are individual existences, which can struggle against the social body, greater and in better condition to resist the use of the physical force of the government.
Now, the more necessary it is that a power be strong, the more scope and independence it must be given. The more extensive and independent a power, the more dangerous is the abuse that can be made of it. So the origin of the evil is not in the very constitution of this power, but in the very constitution of the State that necessitates the existence of such a power.