Ought Supreme Justices to Serve Political Interests? Comparison of the Processes of Appointment and Confirmation to the Supreme Court in the United States and other Western Democracies

In Chapter 14, Greenberg and Page discuss the American judicial system. Authors first trace the evolution of judicial power in the United States, then go on to outline the organization of the U.S. court system, and then proceed to discuss in detail the operations of the Supreme Court and its role in the American system of government. One of the most pressing issues in American democracy, discussed in Chapter 14, is the issue of external influences on the decisions of the Supreme Court (see Section 14.6). Despite the doctrine of the separation of powers, it is evident that in the United States the appointment of justices, notably justices of the Supreme Court, is in itself a political act. Consequently, since there are many factors and players affiliated with other branches of the government which can influence Supreme Court decisions, in this blog post I would like to discuss the impact of the current process of appointing Supreme Justices for the American democracy.

My research interests are primarily in the field of comparative politics, and learning about different systems of government allowed me to discover that in many other democracies, neither the executive nor the legislative branch is tasked with selecting and confirming judges of the court of last resort. I am of the opinion that judicial independence should be regarded as one of the most important principles in any democratic regime, and consequently, the current procedure for appointing Supreme Justices in the U.S. may be inimical to American politics.

Additionally, I believe that the issue of independence of the nation’s judiciary is closely related to the question which constitutes the leitmotiv of this course – “Does government work?” Judge Robert C. Leuba, Chief Court Administrator from Connecticut, beautifully argued that judicial independence is so pivotal to any democracy because, “It protects the weak from the powerful; the minority from the majority; the poor from the rich; yes, even the citizens from excesses of government.” In the United States, the decisions reached by the Supreme Court have been crucial in securing rights of various minority groups. For the LGBTQ+ community, Obergefell v. Hodges, 576 U.S. (2015) has been a pivotal decision in which the United States Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples. Loving v. Virginia, 388 U.S. (1967) was very important for the African-American community, as it invalidated laws prohibiting interracial marriage. Last but not least, Ledbetter v. Goodyear Tire and Rubber, Inc., 550 U.S. 618 (2007) is an important precedent guaranteeing the right of women to equal pay. At the same time, Greenberg and Page recognize that sometimes the Court has been influenced to support decisions which went against the rights of particular groups. The authors of the textbook allude to Korematsu v. United States, 323 U.S. 214 (1944), which confirmed the constitutionality of Executive Orded 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship. It ought to be pointed out that it was a 6-3 decision, in which six of the eight appointees of President Franklin Roosevelt sided with Roosevelt. While this decision has been subsequently described by constitutional scholars as “an odious and discredited artifact of popular bigotry” (Fein 2016) and as “a stain on American jurisprudence,” we may not forget that it also serves as a testimony that high politicization of the judiciary may deprive vulnerable groups from their rights. If Supreme Justices of the time were selected by an independent committee, would they also side with Roosevelt?

As I briefly mentioned in the introduction, from my point of view, one of the most significant differences between the Supreme Court of the United States and the highest courts within the hierarchy of many other jurisdictions in democratic states is the process of appointment and confirmation of justices. Allow me to elaborate on two examples: Poland and Israel. In these countries, there are independent committees which play a pivotal role in the process of selecting judges for the supreme court. In Poland, it is in fact the President who appoints Supreme Court judges for an indefinite period. However, this is done upon a motion of the National Council of the Judiciary. The Council comprises of 25 members, fifteen of whom are judges chosen by other judges (two Supreme Justices, two judges from a court of appeals, two judges from an administrative court, eight judges from district courts and one judge from a military court). The role of the president in the process is much more ceremonial. In Israel, the Nominations Committee is composed of nine members: three judges (the President of the Supreme Court, and two Supreme Court justices), two Ministers (one of them being the Minister of Justice), two members of the Knesset (Israel’s single-chamber parliament) and two representatives of the Israel Bar Association. As you can see, the judiciary in these countries has significantly weaker ties to the political establishment. I believe that it is a good thing that supreme justices are not political appointees.

Admittedly, there are also other Western, well-established democracies whose supreme justices are appointed by politicians from other branches of the government. Germany serves as a case in point here. Half the members of the Bundesverfassungsgericht, the German Federal Constitutional Court, are elected by the Bundestag (parliament) and half by the Bundesrat (representation of the German Bundesländer, or states). Yet, there is a major difference in the impact of the decisions issued by Germany’s Supreme Federal Courts (The Bundesverfassungsgericht deals exclusively with constitutional questions; there are four other supreme federal courts in Germany for other issues) and the Supreme Court of the United States. Namely, the legal system of the United States is an example of a common law system.

The common law system, also known as judicial precedent or judge-made law, follows the style of reasoning inherited from the English legal system – that is, it derives the law from judicial precedent rather than solely statutes. Consequently, American courts may look to past precedential decisions of the Supreme Court, and synthesize the principles of those past cases as applicable to the current facts. Decisions of the Supreme Court make the law. Germany is a country of civil law. Civil law is much more common around the world and is present in almost all European (with the exception of the U.K., Ireland, Cyprus, and Andorra), Latin American and many Asian countries. In this system, core principles are codified into a referable system which serves as the primary source of law, and there is no judge-made decisional law. Consequently, the implications of a particular decision by the supreme court are not as far-reaching as in the United States.

As a matter of fact, the importance of the independence of the judiciary is evident not only in the context of civil rights protections. Previously in this course, we have learned that when the president and the Congress represent two different political parties, gridlock can occur. This gridlock can also severely impact the Supreme Court. We were able to witness this during the second Obama presidency. After Antonin G. Scalia, a conservative Supreme Justice, passed in 2016, President Barack Obama nominated Merrick Garland to take over his seat. However, the Republican-dominated Senate refused to confirm him. Consequently, for about one year the Supreme Court reviewed cases with only eight justices. Ruth Bader Ginsburg lamented that, ““Eight is not a good number.” The even number of justices resulted in some 4-4 splits. For example, the court could not decide a case concerning a challenge to mandatory contraceptive coverage under the Affordable Care Act on the grounds that it violated religious freedom.

As evidenced above, the political influence on the Supreme Court may have various negative consequences. While I do not believe that a change in the way Supreme Justices are appointed in the United States is likely, I think it is important for us, students of political science, to consider what lessons from other cases America could take to improve the efficiency of its political system, and strengthen its commitment to democracy.