Yesterday, Justice Kennedy worried that the Supreme Court, composed of "9 unelected people from a narrow legal background" were increasingly deciding the most controversial issues for our society. An example of recent and current cases before the Court include: the Affordable Care Act, gay marriage, the Voting Rights Act, and immigration. Kennedy's view is that in a democracy major policy issues such as those should not be decided by 9 unelected persons and persons who are totally unrepresentative of the larger population given their narrow background and life experiences. Justice Kennedy should be commended for his self-awareness of the place of the Supreme Court in our democracy. I have seen no recent justices agree with his view.
Political science has much to say about Kennedy's concerns. The problem Kennedy refers to is a classic one that is still being debated in the discipline. It is the countermajoritarian problem, or the question of whether it is wise in a democracy to have 9 unelected men and women make decisions that can overturn and void the decisions of democratically elected legislatures. There are many answers to that question, but the three main camps are:
1) The Court is not undemocratic. We need an unelected branch in order to police the excess of the other two branches; the federal judiciary by design is supposed to help the government contol itself. Therefore, the unelected nature of the judiciary actually furthers democracy because in some instances, it is only the federal judiciary that will do the right thing and protect those (politically unpopular minority groups) who cannot protect themselves when the other two branches are unable or unwilling to. (See Federalist Papers no. 78 and U.S. v Carolone Products Footnote 4)
2) The Court is not likely going to be out of step with prevailing views. There is no way that the Supreme Court will be long out of step with the majority coalition (or governing party) or the public. The Supreme Court is often part of the governing coalition given that on average presidents appoint 2 justices to the Supreme Court. As for the public, the Supreme Court realizes much of its legitimacy derives from public support; therefore it is unlikely to be charging out far ahead of public opinion.
3) Stop asking whether the Court is democratic or not. And a final take on the coutnermajoritiarian question by one of my favorite scholars and people says that debating whether the Supreme Court is democratic or not is misunderstanding the role of the Supreme Court in American politics. One should think of the Court more like a firefighter or EMT in that Court is actually doing a public service for our democracy in taking political hot potato issues that the two other branches are unwilling or unable to decide.