Polarization in the Supreme Court

The Supreme Court serves as a balance of power – the power to check the actions of the President and Congress – in American democracy. Since the Constitution neither elaborated the exact powers of the Supreme Court nor the organization of the Judicial Branch, Congress and the Justices of the Court had to develop the federal court system themselves. After years of trial and error, the Supreme Court has established the power of judicial review to declare state and federal laws and actions unconstitutional. That being said, the Supreme Court must be independent and act apolitically when judging all its cases for democracy to exist. If the President appoints the Justices and there are other governmental and political linkage actors and institutions that influence the Court’s decisions, than is it possible for the Supreme Court to truly be politically neutral?

The Framers of the Constitution made necessary stipulations to ensure an impartial federal judiciary system. Justices serve life terms and will never experience a reduction in salary, which allow them to make decisions without fear of dismissal or pay cuts if they act unfavorably for a President or Congress. Instead each Justice, in theory, adjudicates cases on the basis of the Constitution, statutes and administrative rules without a political bias. However, it is true that Supreme Court Justices often match the ideology of the President that appointed them. This is can present a problem for American democracy, as Courts cannot credibly have the final word when the judiciary itself is a partisan institution. Over the last 75 years the Judiciary has tended to be a more conservative branch of government making decisions that reflect stricter readings of the Constitution and a preference for states’ rights over federal power. It is important to note that even though a conservative president may appoint a right-leaning judge, it is that judge’s duty to make decisions that reflect the Constitution and serve in the interest of the country.

I believe it is important that there is a mix of different opinions of constitutional interpretations so the Court represents the polarized American public as a whole. A politicized judiciary will make decisions that reflect prevailing politics and opinions of the day, which is essentially our democracy at work. Although there may be a “conservative” majority, the Court defended gay-rights by ruling that state and federal laws barring same-sex marriage are unconstitutional, overturning Plessy v. Ferguson practice of “separate but equal” in the landmark decision of Brown v. Board of Education, and even upholding the Affordable Care Act among others. A partisan Judiciary seems more reasonable in order to interpret the principles of the Constitution as the conditions in the United States and political perspectives of the public change over time.

4 Responses to "Polarization in the Supreme Court"

Cassandra Martin says:

April 23, 2018 at 8:15 pm

David,

I thought this was a great post, and that your discussion of how the framers encouraged a structure where judges could make decisions without fear of repercussions of pay cuts or termination if they ruled in a way not favorable to the current Congress or administration. While it is true as you mentioned that presidents will appoint justices with ideologies similar to their own, the sole purpose of a judge is to defend the constitution, and not to be a political pawn that can be swayed by other actors. As the textbook mentions, this often results in judges straying from the president’s wishes in order to make an impartial decision.

This was recently seen when Trump-appointed Justice Neil Gorsuch sided with the more liberal justices, and the 5-4 ruling prevented the passage of a law that would have allowed the deportation of immigrants who commit “serious crimes”. Despite his appointer’s obvious stance on this law, it is very important that Gorsuch was more concerned with constitutionality, and he defended his decision by saying that such vague criteria would allow for tyrannical and unregulated use of power. While it may seem surprising that a conservative justice would be willing to take a more liberal stance, especially given that he has sided with conservatives on an earlier laws concerning immigration, he has been known to scrutinize laws for being vague, as this may promote an abuse of power and violate constitutional rights. This case was first argued in 2017, but ended in a 4-4 ruling after the death of Justice Scalia. To this point, this may not mean that justices tend to rule conservatively due to personal biases, but instead because it is the way our Constitution is modeled, and justices are simply upholding it.

Therefore, while I definitely agree that it is important to balance more liberal-leaning justices with conservative-leaning justices, I think that if the justices are truly performing their jobs with integrity, their interpretations of the Constitution shouldn’t be jaded by personal biases.

https://www.nytimes.com/2018/04/17/us/politics/supreme-court-deportations-trump.html?rref=collection%2Ftimestopic%2FU.S.%20Supreme%20Court&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=4&pgtype=collection
Brett Tivnan says:

April 25, 2018 at 2:22 pm

Hi David,
I liked your post on the partisanship of the Supreme Court and I believe that it is absolutely something that cannot be forsaken. I enjoyed how you discussed the facets of the Supreme Court that allow the justices to remain impartial to outside influences such as public approval and political maneuverings. It really seems to me that amid all of the opposition to certain nominations, many people forget just what the purpose of the Supreme Court. The Supreme Court serves as the highest form of law, and determines the outcome of the laws that serve ALL Americans. Though personal political views may influence the outcome of certain votes, news networks seem to think that certain nominees for the Supreme Court would only seek to further their own agenda. In the case of President Obama’s nominee Merrick Garland, a now 21-year veteran of the Appeals Court for the District of Columbia, it is ludicrous to assume that he would in any way seek to subvert the very legal practices he has spent his career upholding.

http://www.foxnews.com/opinion/2016/03/18/merrick-garland-obamas-supreme-court-pick-is-wrong-choice-at-wrong-time.html
Andrew Griffin says:

April 26, 2018 at 8:46 pm

David-

Your post on the “partisanship” of the judiciary is fascinating. I think most people would find it difficult to disagree with your assessment that we need a variety of different political perspectives on the Supreme Court in order to make a just society. However, having a mixture of political ideologies and a mixture of political partisanship are two different things.

What I mean to say is that of course a diversity of ideas is a very good thing. However, we see Supreme Court justices going along partisan lines. For example, the conservative justices upheld voter ID laws. While they provided constitutional basis for their decision, it is clear that they were moved by their loyalty to the Republican party. The same dynamic is at play in the Bush v. Gore.

Ultimately, the biggest problem with justices is that they are human, and have their own self interests.

-Drew
Marc Bosch Valentines says:

April 27, 2018 at 6:36 pm

David,

Thanks for your post. I think that you brought into the discussion a really interesting question which is the neutrality of the supreme court. While in theory they are purported to be neutral and apolitical this is not what happens in reality. For instance, in Spain, there is the constitutional court, which is above the supreme court. In that sense, the constitutional court is the last court you can reach to in terms of an appellation of the sentences. Within the last eight years, the Spanish government has been using the constitutional court in their favour to demolish every single law that has come out of the Catalan Congress. Therefore, an important question is, how it varies among countries the independence of the judiciary. Is it really effective this independence or as in the case of Spain, the courts are in favour of the party that is in government? Becuase, as it can be easily seen in Spain, nowadays the separation of powers is more questioned than ever and the international reputation of the Spanish judiciary is at its worst moment since the reestablishment of the democracy back in 1978.

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