Undoubtedly the Supreme Court has considerable political power. This power has come about after the case Marbury v Madison, the landmark decision that helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government. The job of a judge, in this case of the Supreme Court Judges, is to be unbiased, fair, neutral, impartial, and their judgement should not be based on those of any political party or movement. The Supreme Court has exercised judicial review striking down laws of the elected branches of Federal and State governments for being ‘unconstitutional’. In addition to this, the appointment process to the Supreme Court has become more ‘politicised’ meaning that they are only chosen if they match the political ideologies of the President that nominates them. A common complaint of the Supreme Court is that: how can unelected officials make policy without being accountable? Republicans objected to the ‘liberal’ decisions of the Warren Court 1953-69 and Democrats object to the current conservative rulings of the Roberts Court. However, this does not imply that once in office, Supreme Court justices act like elected politicians in order to promote their personal views. In this essay, I will argue that despite the appearance of a politicised judiciary, the Supreme Court essentially make judicial decisions in a judicial way, though these have may occasionally have political effects.
Those who object to judicial activism believe that the Supreme Court is becoming too political. “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history”, Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other”. In the Supreme Courts lifetime both parties complain about activism on either side. The conservatives complain about the ‘liberal activism’ of the Warrens court. Two key landmark cases for this would be Brown v Board (1954) and then Roe v Wade (1973). These decisions acted as an engine for social change protecting minorities an area of which had been neglected by politicians in America’s history. The Liberals however, also complain about ‘conservative activism’ of the Roberts Court. An example of this is the District of Columbia v. Heller that opens the door to countless challenges to laws that regulate firearms. The case also powerfully shows that it is the ideology of the Justices and not their philosophy of constitutional interpretation that determines the outcome of cases. Conservatives generally favor gun rights and the five most conservative Justices followed their politics to this conclusion.
When judges are nominated and appointed it can raise the issue about the process being politically biased. When a vacancy on the Supreme Court appears through the retirement, death or impeachment of a justice the current president has to nominate the next justice and then the Senate either approves the nominee or rejects them. The Bork nomination demonstrated how a political nomination could occur. Ronald Reagan attempted to nominate Robert Bork as Supreme Court Justice in 1987. The nomination was seen as extremely controversial from the Democrats perspective because of Bork’s somewhat extreme conservative rulings in the past, senator ted Kennedy taking to the Senate floor and saying, “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution”. The eventual rejection of Bork with 42 senators voting ‘Yes’ and 58 voting ‘No’ was a watershed moment making the nomination process increasingly political because it set a precedent whereby Presidents knew that they could not nominate someone who was against abortion displaying politicisation by the Senate. Arguably, ‘liberal’ justices justify their decisions by arguing they are ‘loose constructionists’ whilst knowingly boosting liberal causes e.g. Roe v Wade 1973 guarantied women a right to an abortion where no clear constitutional right to one exists. Similarly, the conservatives argue they are ‘strict Constructionists’ whilst knowingly protecting vested interests, an example being Citizens United v FEC in 2010, because there is explicit protection for these rights from the 1st amendment that the Supreme Court protects.
There are many limits on the Supreme Court one of which is that the court must ensure that justiciability can be shown. That is, that the case they are going to consider raises justiciable question – these are “appropriate for judicial interpretation”. In this case Chief Justice Charles Evans said that justiciable questions involve ‘a real and substantial controversy’ that can be resolved by a conclusive ruling in a court of law. It should be a yes or no question. It should have a clear basis in the constitution. It may be a question that has divided opinion in the lower courts, so a definitive answer is needed. This limit coincides with another in that the court can only consider cases that appear before it. It cannot simply choose to get involved in a particular policy area but must choose from the cases that have reached the Supreme Court. Thus, the Court only considers cases of law. It does not and cannot offer advisory opinions. Therefore, heavily suggesting that the justices of the Supreme Court are far from politicians.
The ruling of the Supreme Court on cases such as Brown vs. Board suggests that judicial activism rather than making the Justice more political demonstrates how it can often bring the right societal outcomes. Brown v. Board is an example of where judges intervened on a case that split public opinion but used judicial activism correctly in ruling the segregation of schools as unconstitutional and therefore fulfilling their job expectation, which in this case was giving minority’s equal rights to everyone else. Only an unelected branch was capable of protecting constitutional minority rights in those extreme circumstances.
The accusation that the Supreme Court justices are politicians wielding unacceptable unaccountable political power does not ring true. They can strike down the laws of the elected branches but only if found unconstitutional; all Supreme Court rulings are explained as judicial rulings. The Supreme Court undoubtedly makes decisions that affect political outcomes; but this is inevitable (their role is to deliver judicial review). Despite the political side hanging over their appointment, it is far from clear that, once there, the justices use their position to legislate from the bench; if they were widely perceived as doing so, they would lose legitimacy. Finally, it is evident that the Supreme Court justices do not act like politicians as they are independent of government control and do not need to seek re-election, having life tenure.