How political is the Supreme Court?

The Supreme Court of the US is an independent body whose primary function is to interpret the Constitution. In performing this role, the Supreme Court acts in a non-political manner. In other words, it does not reach judgments on the basis of the political leanings of its members. Most informed commentators would accept that these observations hold some veracity. The SCOTUS undoubtedly holds a degree of independence from the other two branches of government. It could never be described as a political body in the manner of a judiciary within a dictatorial/autocratic regime. Individual members undoubtedly hold a degree of autonomy from the other branches of government. Although they may be described as adopting a liberal/conservative philosophy, they could in no sense be described as a Republican or a Democrat. Once they gain a seat on the Supreme Court, they are not beholden to any political party. Moreover, the Court is fundamentally a judicial rather than political institution. Its role is essentially that of an appellate court. In the huge majority of cases, it follows stare decisis (translated as ‘let the decision stand’) and in all cases restricts its role to that of constitutional interpretation.

Having said all this, the Supreme Court is political to some extent. There are four points one could offer to support this argument. To begin with, we might consider the power of judicial review. This enables the judiciary to declare actions taken by politicians to be unconstitutional. Acting as a check upon the power(s) of the other two branches of government is by implication a political act - both in character and content. To some, this represents an excessive level of power held by the judicial branch. Indeed, there are many who would argue that elected representatives should be given the leverage to make controversial decisions when circumstances arise because they have sufficient legitimacy from the people to do so. In contrast, none of the nine Supreme Court members holds any democratic legitimacy from the people. Unlike politicians, they do not have to account for their actions/decisions to the public.

The second point relates to the politicized character of the nomination process. This is very notable during a period of divided government when members of the Senate anticipate partisan benefits to be gained in rejecting a presidential nominee. It is no coincidence that nominees to the Supreme Court find it much more difficult to gain the consent of the upper chamber when the party in control of the Senate differs to that of the President. Take the case of Robert Bork, the last nominee to be rejected by the upper chamber. Bork’s impressive legal experience was entirely secondary to his right-wing views on race relations and the role of women. The politicized character of the nomination process can be evidenced further via the activities of pressure groups. Bork himself was subject to attack from liberal groups such as the NARAL and the NOW, whereas in more recent times over $2 million was spent by advocacy groups over the nomination of Samuel Alito. Moreover, it must surely be recognized that the nomination process can be overtly political even during a time of unified government. For instance, Harriet Miers was withdrawn from the nomination process because she was considered insufficiently right-wing by Republicans. Her lack of conservative credentials had been highlighted consistently by a number of pro-choice pressure groups. Whereas committee meetings are characterized by the language of judicial restraint, original intent and strict constructionist; the actual meaning of the questions and the process is without question political.

Thirdly, it must be acknowledged that the Supreme Court will make judgments that touch upon major political controversies over issues such as free speech, gun control, same-sex marriage and affirmative action. Decisions taken by the Supreme Court will inevitably affect these political issues in some manner. There are certain landmark cases that we are taught in school from a relatively early age. These decisions have massive political implications, and not just the obvious ones of Brown (1954) and Wade (1973). Take the case of Windsor v. US (2013) when the Supreme Court ruled the DOMA was unconstitutional. In reaching that decision members of the Supreme Court acted in a manner one might consider to be political. Even a judge who believes very firmly in judicial restraint is by implication playing a political role. Having said this, the controversy becomes all the greater when the Supreme Court is activist by inclination. Moreover, some judgments will have major political significance. There is surely no better example than Bush v. Gore (2000). During this cumbersome saga the first ruling mandated a state-wide manual recount. George Bush’s campaign team appealed to the US Supreme Court and, by a vote of 7-2; they decided that Florida’s recount procedure had violated the equal protection clause of the Constitution. However, by a 5-4 vote they ruled that there was no fair way to recount the votes in time for Florida to participate in the Electoral College. In effect, this decision handed the presidency to George W. Bush (Moore, 2004).

Finally, it must be noted that once a ruling has been reached the voting record of its members are published and reasons are given for their judgment. The inevitable response from politicians and political commentators is to discuss such findings and thereby generate further debate. The wording of Supreme Court decisions will invariably instigate further debate within the political process. For example, Senator John McCain described the Citizens United ruling in 2010 as “the worst decision ever.” Along with Russ Feingold (D), he had pushed forward campaign finance reform only for it to be undermined by a Supreme Court ruling that corporations held the same first amendment rights as individuals – a view he clearly did not share. The Democrat presidential candidate Bernie Sanders has even called for a constitutional amendment to overturn the ruling. Moreover, President Obama criticized the decision in a State of the Union address.