The US Supreme Court: A Political Institution?

Founding Father and future president John Adams wrote in Thought on Government in 1776: “Judicial power ought to be distinct from both the legislative and executive and independent upon both,” with many seeing the modern-day Supreme Court as having become intrinsically politicised. In order to evaluate if the highest court of the land in the US has become overtly political, it is important to look at factors such as the appointment system, the role of pressure groups, and the upholding of precedent. The following piece will analyse the concept that the US Supreme Court has encroached upon the two other branches of government to become a political institution.  

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One piece of evidence in favour of the argument is that the Supreme Court is often forced to oversee matters that are inescapably political, involving politicians and elections.

With the Supreme Court being tasked with upholding and interpreting the sovereign Constitution, this can mean being forced to answer divisive political questions. For example, the famous United States v. Nixon (1974) case answered the question of the extent of executive privilege when ruling that the President did not have absolute power. In this case, this was referring to President Nixon’s withholding – despite a subpoena – of White House tapes regarding to Watergate break-in which may have been crucial to an ongoing criminal investigation. The case’s controversial intervention in a political question is highlighted by Nixon’s attorney James D. St. Clair who stated that the case was a “nonjusticiable issue.”

Another famous example is Bush v. Gore (2000), in which the Supreme Court was given the job of effectively deciding the winner of the 2000 election. In ruling a late recount unconstitutional in the deciding state of Florida, the Court decided the outcome of the election by giving the presidency to George W. Bush. The decision was along ideological lines, with the conservative justices all siding with the Bush campaign’s opposition to the recount. This, thus indicates evidence of the the Supreme Court becoming politicised, with the Court inserting itself into party-political and directly polarising matters, acting as a political outlet in that sense.

Comparatively, in the United Kingdom, the Supreme Court was criticised after its role in the case R (Miller) v. Prime Minister (2019), a case relating to Boris Johnson’s proroguing of Parliament. Prominent Conservative MP Jacob Rees-Mogg attacked the decision as a “constitutional coup,” whilst Brexiteers ridiculed the judgement as an attempt to prevent the UK from exiting the European Union, with a Number 10 source saying the Court had made “a serious mistake in extending its reach to these political matters.”

Problematically, the political decisions taken by the Supreme Court do, in a sense, lack legitimacy due to the fact that they are made by nine unelected justices. These justices have not been voted in and cannot be removed from office unless impeached due to their tenure but can still make vital political decisions, even if against Congress, the President, or even American citizens.  

Secondly, the Supreme Court can be seen as acting in a political manner through its use of judicial activism.

Judicial activism is when the Court ‘legislates from the bench’, making unofficial amendments to shield certain rights under the Constitution. The use of the term ‘activism’ is that the Court can make protection into law, with the ability to strike down Acts of Congress as unconstitutional (which the Court can do under the checks and balances system in which the separate branches of government can scrutinise one another).

In terms of acts of judicial activism, two of the most significant landmark rulings are Brown v. Board of Education of Topeka (1954) and Obergefell v. Hodges (2015). In the Brown case, the Court overruled previous decisions, such as that in Plessy v. Ferguson (1896), to rule that school segregation was unconstitutional, with such a case striking down the ‘separate but equal’ doctrine previously in force, with Chief Justice Earl Warren citing “a feeling of inferiority…that may affect their hearts and minds in a way unlikely to ever be undone.” 

Meanwhile, Obergefell ruled that all states recognise and protect same-sex marriage, a landmark decision considering the matter had largely been shrugged off by Congress; the Obergefell decision passed a previous incident of activism when the Court overturned the Defense of Marriage Act in the United States v. Windsor (2013) case. To compare, Congress did not pass same-sex marriage protections until President Biden signed the Respect for Marriage Act into law in December 2022 whilst compact anti-segregation legislation did not come into force until 1964’s Civil Rights Act, meaning in both cases that for many years, the only sanctuary for their rights was from the Court’s rulings.

As a consequence, a problem with judicial activism is that without sufficient legislative protections, the Supreme Court are in jeopardy, with the possibility of an overturn costing many their rights which they had previously held. Supreme Court Justice Clarence Thomas hinted at such, writing in 2022 that “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The use of judicial activism in the decisions and rulings of the Court, devoid of the lawmakers in Congress, therefore illustrates evidence of a link between party politics and the highest court of the United States. 

Moreover, especially in the 21^st century, the appointment process of Supreme Court justices has become extremely polarised.

In Article II, Section 2, Clause 2 of the Constitution, it is outlined how it is the role of the President to pick a nominee and they can be appointed with the “Advice and Consent of the Senate.” Such a vote thus cuts across a partisan line, with Republicans supporting conservative candidates and Democrats wanting liberal nominees – with both sides ardently opposing a justice of the opposite political perspective.

For example, in 1987 – the last time a Supreme Court justice was rejected in a vote – a divided Congress shut down lame-duck President Reagan’s nomination of Robert Bork. Bork’s controversial views on judicial activism resulted in highly contentious oversight hearings, now led by Democrats (chaired by Senator Joe Biden); Bork was rejected 42-58, with 52 out of 54 Democrats voting against confirmation.

In 2020, Amy Coney Barrett was appointed without a single Democrat voting in favour, the first time that a justice was confirmed without opposition votes since 1869. The addition of Barrett just a month before an election and against the late Ruth Bader Ginsberg’s wishes was in itself controversial, as Republicans prevented President Obama from adding a nominee in his last year in 2016. Even Ketanji Jackson Brown, the first female African-American Supreme Court justice, was only supported by three Republican Senators – the moderate Republican trio of Mitt Romney, Lisa Murkowski, and Susan Collins.

Comparatively, it should be noted how previous decades had a far more bipartisan nature in regard to appointment. Even partisan nominees were appointed with near-universal appraisal. Ruth Bader Ginsburg, described by MSNBC as a “women’s rights champion, leader of the court’s liberal bloc and feminist icon” was appointed 96-3 whilst conservative constitutional originalist Antonin Scalia had 0 votes against his confirmation. Plus, in spite of heavy Evangelical opposition from the likes of Jerry Falwell and Peter Gemma, the first female justice Sandra Day O’Connor was voted in 99-0, with the only missing member reaching out to apologise for not being present.

In the UK, the process is far less political by comparison. Instead, the nominee is chosen by an ad hoc independent commission, with the Lord Chancellor only able to reject nominees for a sufficient reason and can only do so on a limited number of occasions since the 2005 Constitutional Reform Act. He then notifies the Prime Minister who notifies the monarch. The contrast between the two systems simply serves to illustrate how political the US Supreme Court system has become in regard to nomination. 

Fourthly, Supreme Court cases often feature the involvement of political groups and associations, adding to the politicisation of the bench.

There are numerous ways political groups can attempt to influence the judiciary in Supreme Court cases, trying to tip the Court in favour of the group’s ideological beliefs. Writer William Storey expresses how influential the roles of pressure/interest groups can be, noting:

“in a 2003 case deciding whether to allow Affirmative Action to continue, Grutter v. Bollinger [(2003)], the Court freely admitted that they were heavily influenced by amicus briefs from influential groups such as major corporations.”

With the Supreme Court serving as a battleground for battling political principles, the role of such organisations shows how accusations of Supreme Court politicisation do hold water in this regard. Perhaps the most famous example of a judicially involved political institution is the American Civil Liberties Union (ACLU), which has been involved in many landmark US Supreme Court cases in the last century including Griswold v. Connecticut (1965), Edwards v. Aguillard (1987), and Reno v. American Civil Liberties Union (1997).

In the 21^st century, the group has fought against transgender discrimination, the so-called Trump Muslim travel ban, and terrorist torture under the Bush administration. The ACLU’s own website comments that the organisation “appears before the U.S. Supreme Court more than any other organization except the U.S. Department of Justice.”

Groups can also file amicus curiae (‘friend of the court’) briefs, with the Obergefell v. Hodges (2015) case seeing a record-setting 148. This is not to mention politicians who had roles in Supreme Court cases. Among these are Vice-President Dick Cheney’s amicus brief, alongside the National Rifle Association (NRA), in the case District of Columbia v. Heller (2008), relating to the individual right to bear arms.

Also, Barney Frank – the first openly gay Congressman – was amongst those sponsoring an amicus brief in the Windsor v. United States (2013) case which sought to question the constitutionality of the Defense of Marriage Act which barred federal recognition of same-sex marriage. As well as natural allegations of elitism where the greatest funded groups have a large say over public policy, the lobbying influence means that interest groups can place their minority influence over the majority.

In 2010, the nonprofit conservative organisation Citizens United brought the case Citizens United v Federal Electoral Commission (2010) to the highest court in the land, with the Court’s ruling allowing corporations to contribute unlimited amounts of spending during elections being disapproved on a  bipartisan basis. In fact, 85% of Democrats and 66% of Republicans were found to disagree with the ruling. Similarly, despite groups such as Susan B. Anthony List supporting the 2022 overturn of Roe v. Wade (1973), despite the clear majority of nearly two-thirds of American citizens disagreeing with the ruling. The role of political groups in Supreme Court cases hammers home evidence of a level of Supreme Court politicisation, with organisations aiming to legislate through the Courts. 

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