AGAINST
In order to sufficiently scrutinise the claim of the Supreme Court becoming a political institution, it is important to observe arguments in favour of the opposing position.
A case for arguing against the statement is that the Supreme Court has often reached unanimous verdicts in many historical landmark cases.
Although the Court’s decisions are often divided, sometimes across ideological lines, it is true that some of the biggest cases have seen all ruling together. Such a display of cross-court unity illustrates how the Court has not become as incredibly partisan and polarised as has been implied. For example, in the case New York Times Co. v. Sullivan (1964), the Court unanimously upheld the First Amendment right to freedom of speech in regard to the press when siding with The New York Times after printing a story about a police officer who subsequently sued for defamation.
In addition, Loving v. Virgina (1967) saw the Court rule 9-0 that a Virginia law criminalising interracial marriage was unconstitutional, with Chief Justice Earl Warren pronouncing: “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Talking of Warren, in the crucial 1954 case Brown v. Board of Education (1954), the Court came to a shocking unanimous decision, with Chief Justice Warren working diligently to gain a collective opinion, as noted by James T. Patterson in his book on the subject.
In it he writes:
“[Warren] much wanted the Court to reach a unanimous opinion, or, if Reed held out, to announce a decision with only one dissent. He labored especially assiduously to woo the argumentative Frankfurter, and he regularly sought out Reed for lunch. He assured Reed that he (Reed) would in the end ‘really do the best thing for the country.’”
Similarly, in the less politicised UK Supreme Court, some recent high-profile cases have also had unanimous rulings such as R (Miller) v. Prime Minister (2019) – which stated that Prime Minister Boris Johnson’s prorogation of parliament was unlawful – and a 2022 case which ruled that Scotland did not have the legislative power to hold an independence referendum without approval from Westminster. Even though the US Supreme Court is often considered to be partisan, this can somewhat be disproven by a number of high-profile cross-ideological decisions from the Court.
In addition, Supreme Court justices, once appointed, can act independently and have ruled against the wishes of the president who appointed them.
Although it is the role of the serving President to nominate a justice, once confirmed, justices have life tenure where they cannot be removed by the person who appointed them and are free to act as they wish. The ability of justices to work independently and impartially once appointed serves to thus undermine claims of adverse politicisation.
As President and later Court appointee Howard Taft remarked: “Presidents come and go, but the Supreme Court goes on forever,” implying that Presidents’ actions may apply in the short term, but the rulings of the Supreme Court give them a legacy to live on. For example, in United States v. Nixon (1974), all justices nominated by Nixon still ruled against him including Justices Burger, Blackmun, Powell, and Rehnquist.
In early 2022, the Court ruled 8-1 that ex-president Trump could not block the release of January 6 files to the congressional committee, with all three Trump appointees ruling against him; Trump nominees Justices Kavanaugh and Barrett also rejected to hear a case regarding the falsified rigging of the 2020 Presidential election. Elsewhere, justices can act against the likely ideological wishes of those who appointed them, with Justice Souter – a George H. W. Bush appointee – often siding with the liberal wing of the bench. Plus, Reagan appointee Justice Kennedy became a vital swing vote on the Court, being a deciding vote in Obergefell v. Hodges (2015). In a ruling opposed by many Republicans (notably Ted Cruz), Kennedy wrote in his opinion:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”
For comparison’s sake, the UK’s Court – which wields less power to override executive actions – has also ruled against the Prime Minister, with the Law Lords shooting down components of Blair-support terrorist measures such as asset freezing and indefinite detentions. Such actions caused Home Secretary David Blunkett to label the court “dictators in wigs.” The role of Supreme Court justices, who can rule against their own President, illustrates how the Court is not completely political, with the judges not always presiding politically with the politician who placed them in their office. It should be noted, however, that justices can often side with the President’s wishes, perhaps feeling indebted to the commander-in-chief for nominating them in the first place.
In the highly controversial case Korematsu v. United States (1944), the Court – consisting of eight justices appointed by Franklin D. Roosevelt – upheld FDR’s Japanese internment camps executive order, in one of the most derided Supreme Court decisions in US history. Plus, in 2022, the Supreme Court ruled 6-3 to override Roe v. Wade, with all three Trump appointees in the majority, fulfilling Trump’s wish to overturn the ruling by appointing pro-life judges – thus contrasting and questioning the arguments of a lack of political involvement.
Thirdly, evidence that the Court has not become irreversible political is that it often follows precedent.
Justices may use previous rulings in order to rule on new cases, using the principle of stare decisis, translating to ‘let the decision stand’. Even through ideological and social changes, past decisions still have a large bearing on new cases that come before the Court. In Constitutional Precedent in US Supreme Court Rulings, author David Schultz documents that from 1789 to 2020, the Supreme Court reversed its own precedent only 0.005% of the time. An example of the Court sticking to precedent was evident in Dickerson v. United States (2000), which upheld the controversial previous ruling in Miranda v. Arizona (1966), which ruled that police must read arrested suspects their Fifth Amendment rights. Plus, California v. Texas (2021), even in spite of a 6-3 conservative majority, backed Obamacare provisions just as they had in National Federation of Independent Business v. Sebelius (2012).
Chief Justice Roberts, who was in the majority both times, has additionally commented about following precedent: “Judges have to…recognize that they operate within a system of precedent shaped by other judges,” showing Roberts’s championing of following such precedent.
The Supreme Court’s common upholding of precedent – making applicable previous rulings to decide new cases – implies that the Court are not wholly political, reserving itself from activism and playing a passive role. Yet, the problems with following precedent are two-fold. Firstly, it can show an unwillingness to adapt and alter decisions, even if in a different context. For example, the Jacobson v. Massachusetts (1905) case which allowed states to enforce compulsory vaccinations was later used to justify one of the most wildly condemned rulings in Buck v. Bell (1927) in which the Court ruled that compulsory sterilisations of the disabled were constitutional under the Fourteenth Amendment’s ‘Due Process’ clause.
In defence of the decision, Justice Holmes remarked afterwards: “Three generations of imbeciles are enough;” the case led to 70,000 domestic sterilisations and is thought to have inspired Nazi Germany’s programme, in which tens of thousands were sterilised. Conversely, precedents are not irreversible and without sufficient protections can be overturned by a later Court ruling, as has happened in recent years with cases dealing with abortion and affirmative action (despite the aforementioned love Justice Roberts has for precedent, in 2019, The New York Times noted Roberts being in the majority of cases that broke precedent 81% of the time.
Finally, it is important to note that justices place the sovereign Constitution over their own personal or political beliefs.
The judiciary are enforced with being the guardians and interpreters of the Constitution with Article VI declaring that judges are “bound by Oath or Affirmation, to support this Constitution.” They too must “solemnly [swear or affirm] that [they] will support and defend the Constitution of the United States against all enemies, foreign and domestic.”
Verification of such a claim is proven by Justice Anthony Kennedy’s comments in Texas v. Johnson (1989), a case relating to the burning of the American Flag under the First Amendment. In a brilliant concurring opinion, he outlined his case that flag-burning bans were unconstitutional, noting: “The hard fact is that sometimes we must make decisions we do not like.” The online website Vox also points out textualist Neil Gorsuch’s rare defence of LGBTQ rights in Bostock v. Clayton County (2020), writing:
“Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law.”
Also, in Baze v Rees (2008), liberal justice Stephen Breyer upheld the lethal injection as a method of execution, despite having described the death penalty as “sufficiently arbitrary, cruel, unusual,” – he justified such a decision by remarking that the specific case was not in relation to the death penalty’s constitutionality. Therefore, the following of the Constitution, as followed by all judges, symbolises how the Court’s biggest political role is first and foremost preservation of the Constitution, going against the argument of an incredibly polarised and political judiciary. An issue with following the Constitution however is that many see the document as outdated such as the Second Amendment. Justice Burger went as so far as to call gun lobbies’ defense of it a “fraud,” in need of regulation. He commented: “The Framers clearly intended to secure the right to bear arms essentially for military purposes,” even if the Court ruled in 2008 in favour of individual gun rights – against the wishes of the majority of American citizens.
Conclusion
To conclude, it seems fairly indisputable that the Supreme Court has become more politically entangled in recent decades. As the US scene has become more politicised, the Court has caught the tailwinds and become more political.
Once choosing the President and causing the President to subsequently resign, the Court is more willing to intervene in intrinsically political matters. Moreover, the system of appointments has become increasingly partisan, questioning the independence of the judiciary. The role of political groups in such cases too indicates political involvement, as does the Court’s ability to make landmark legislation through demonstrations of judicial activism.
It should be clarified, that this is not to say that the Court has become polarised or irreparably damaged. The Court is largely still able to cut across ideological lines in its decision-making, even in the modern day. That said, instances of such co-operation are rarer to find, especially in the case of some of the most important decisions made by the Court.
Although the US’s separation of powers entitles the three branches of government to be separate as of today, those arms have become increasingly condensed, compounded, and blurred.
GRIFFIN KAYE,
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