The Supreme Court of the United States of America constitutes the judicial branch of American governance. Its role is to ensure the promise of equal justice under law by upholding and interpreting the Constitution, a task that renders this institution as powerful as it is controversial. The Supreme Court exerts an immense amount of influence over American politics as it certifies the legality of policies passed by other branches of government – the legislative wing represented by Congress and the executive wing represented by the President – by confirming the validity of such policies.
In its role of guardian of the Constitution and the legal framework established within it, the Supreme Court adopts a position of impartiality – it is meant to be devoid of political partisanship, immune to the pressures of political groups or entities.
However, the Supreme Court’s impartial nature has been heavily contested: the controversy associated with this legal body arises not only from the overarching federal power it holds over US states, but from claims that Supreme Court justices are not truly separate from any political affiliations.
Many would argue that justices do not epitomize political neutrality but are, in fact, politicians hidden beneath the disguise of their robes, continuously using their positions to cement political agendas. To determine the validity of this argument, an assessment of the Supreme Court’s purpose must be conducted.
The Supreme Court is designed to serve as the “final arbiter of the meaning of the Constitution” (McKay, 2017: 323); this ties the judicial branch intrinsically to the foundation of the American government and underscores that there is little room for justices to express their individual opinions on matters. The Court encompasses a form of collectivist objectivity based completely on legal explications found in the Constitution. Justices cannot deviate from the guidelines established by this document and it is their duty to follow the governance it fortifies. The Court’s legitimacy is based on “the idea that there is some distance between interpreting the law and making political decisions” (Long, 2020: 4) and that it must adhere to “neutral principles of decision-making” (Pacelle, 2015: 15).
Yet while the Supreme Court’s authority has rarely been challenged by external political entities, both Congress and past Presidents have attempted to undermine the Court’s independent role through different legal means. There are numerous examples illustrating this point. Congress has a direct oversight role vis-à-vis the Supreme Court as “the Constitution specifically gives to Congress discretion over the Court’s appellate jurisdiction” although “only rarely…has Congress exercised these very substantial discretionary powers” (McKay, 2017: 334).
Congress can reverse statutory interpretations, although it “cannot touch those decisions that are based on constitutional interpretation” (McKay, 2017: 334). The legislative branch also serves as a way for public opinion to be expressed about the Court within the political system, as justices are not directly elected by the American people.
As a result, “Senators and representatives quite frequently openly attack the Court or even introduce bills designed to curb its power” (McKay, 2017: 334) particularly when ideological contentions are at play, going so far as to write proposals “designed to curb the Court’s jurisdiction (McKay, 2017: 334) to counter justices’ decisions.
A recent example of this can be illustrated through Republican members of Congress attempting to repeal the Affordable Care Act and effectively “reverse the several Supreme Court decisions that have upheld key provisions of the Act” (McKay, 2017: 334). It must be noted that, up to now, these attempts have failed.
As for the executive branch, Presidents bear the crucial task of Court appointments and clearly attempt to exert political influence over the judicial wing in this way. When a seat becomes vacant, either due to retirement or death, the President appoints a new justice who would typically adopt “political views [that] are similar to their own” (McKay, 2017: 335).
For this reason, the final decision to approve or reject an appointment rests with the Senate.
If Senators believe a potential justice is incompetent and will not uphold the Court’s role appropriately, it may reject the nomination.
Such a situation occurred in the 1970s when two of Nixon’s appointments were rejected by the Upper Chamber based on their status as “undistinguished jurists” with “a dubious record on civil rights in the southern courts,” which illustrated the executive’s limited power, seeing as “a president may nominate a conservative or a liberal, but not an incompetent or a bigot” (McKay, 2017: 336).
Through these checks and balances, the Supreme Court has effectively maintained its legitimacy as a judicial body and has fought to remain a politically neutral institution, only rarely ceding to political pressures. Nevertheless, the Supreme Court has arguably been subject to a changing political climate in which increasingly tumultuous relations between branches of governance have become recurrent and one cannot assume that the Supreme Court is as utterly apolitical as it proclaims to be.
In light of an increasingly polarized political environment, true impartiality has become virtually impossible, and justices have become vessels for political influence within the Court. Many now view the Court as rarely deviating “from the prevailing weight of political or public opinion” and directly tying its function to the legitimization of “dominant political influences” (McKay, 2017: 332).
This is what is referred to as “judicial activism”, where justices “opt for constitutional interpretation based on policy results” (Garoupa, 2016: 1098). Legitimacy is no longer “tied to concepts of social order and stability” (Pacelle, 2015: 18) but rather is explicitly bound to protecting the Court’s power, where “nakedly partisan” (Pareene, 2020: 8) interests can influence the judicial branch.
As mentioned earlier, the American population has no direct influence over the Supreme Court, seeing as they have no electoral power in deciding who becomes a justice, a duty left to other branches of government. Nonetheless, public opinion is taken into consideration when enacting verdicts due to the inherent nature of the American political system.
America is a democracy at its core, in which the people have an inalienable right to have their voices heard.
Indeed, this point is expressed in the Constitution’s first sentence – “We the People affirm that the government of the United States exists to serve its citizens” – and it has been firmly established that the Court bases its jurisdiction on this document. Therefore, it is natural for justices to consider how the American people may approve or disapprove of their rulings.
Yet the Court has not always followed public consensus. An important turning point was its stance during Great Depression as it voted to “strike down federal New Deal legislation” despite the socio-economic damage associated with such a verdict, which “politically isolated” (McKay, 2017: 340) the Court from the American population.
Decades later, during the Civil Right movements of the 1950s-60s, the fight for social justice became prevalent in American politics: social issues played an important role in determining the Court’s rulings in numerous controversial cases, as justices considered the American public’s changing attitudes towards racism and gender-based discrimination.
In terms of judicial activism motivated by racial justice, the landmark “Brown v. Topeka Board of Education” verdict sought to end segregation in schools as these were “inherently unequal”, arguing that it violated “the equal protection clause of the Fourteenth Amendment” (McKay, 2017: 363). This Court decision not only adhered to “the majority opinion” (Spitzer, 2020: 5), it also encouraged “desegregation of the South” (McKay, 2017: 341), demonstrating the significance of the role of public opinion on the judiciary branch.
In the 1970s, the Court tackled gender-based issues when feminism, and the controversial issue of abortion, came to the forefront of American politics. The Court recognized that “public opinion is broadly pro-choice” (McKay, 2017: 360) and this heavily influenced justices’ decision regarding the “Roe v. Wade” verdict, which established that “women had an unrestricted right…to an abortion during the first three months of pregnancy” (McKay, 2017: 342). This verdict attempted to uphold women’s rights, despite the political conservative pressure the Court was subjected to and can be read as justices’ desire to “create rights that they felt should be guaranteed” (Black, 2012: 7) by the Constitution.
As seen in these cases, public opinion heavily impacted the Court’s decision-making process as it is justices’ duty to uphold the voices of the American people, as stated in the Constitution. Therefore, it can be said that the Court is impacted by political pressures stemming from the population. However, this kind of influence does not solely have external origins; internal factors can play into the Court’s political affiliations as governmental actors attempt to establish agendas amongst justices.
The Supreme Court “cannot be disassociated from the existing…political opportunities” (Garoupa, 2016: 1101) seeing as it is a governmental entity that is inherently political. It has been previously established that the Court embodies judicial power within the US government and that it is intrinsically linked to other branches, including Congress and the Presidency. Given the nature of the political divide in the US, it is perhaps unsurprising that both the legislative and executive branches have made attempts to cement their power and retain their majority by influencing the Supreme Court. It should be noted that judicial activism is not synonymous with liberal activism amongst justices (Spitzer, 2020): conservative rulings are just as likely to take place.
Returning to the “Roe v. Wade” case, many conservative actors have in effect “restricted access to abortion” (McKay, 2017: 360) by enacting several laws designed to make the procedure less available. For example, in many states it is mandatory “that the parents of minors seeking to terminate be informed” (McKay, 2017: 360) of the procedure. Additionally, the number of abortion clinics have been limited due to the elimination of governmental aid (McKay, 2017). Although “Roe v. Wade” has not been completely overturned, the Court ultimately has “upheld these laws” (McKay, 2017: 360), allowing Congress to weaken its original ruling.
Moreover, the Supreme Court has preserved policies that favor the capacity of politicians to consolidate their power. The Court ruled in 2010 in the “Citizens United” case that “corporations and unions can spend directly from their treasuries to influence elections” (Black, 2012: 11), which particularly favors Republican candidates as they tend to support pro-business agendas such as deregulation. As a result, they have a remarkable advantage over candidates that do not have access to the same financial endorsement. One case in point: “casino magnate Sheldon Adelson”, with a net worth of $20 billion, was “willing to spend $100 million” (Black, 2012: 14) on Republican presidential candidate Mitt Romney.
Another Supreme Court case where political affiliations may have played an important role was the controversy surrounding the 2000 Presidential elections, with uncertainty regarding the results in Florida “that did not mark either Gore or…Bush” (Spitzer, 2020: 6) as victors.
The Court ruled in “Bush v. Gore” that a recount in Florida would be unconstitutional under the 14th Amendment “because the state failed to institute a uniform procedure for the recount and handled each ballot differently” (Spitzer, 2020: 6). Many interpreted this this verdict as “raw partisanship lightly draped in legal justification” (Pareene, 2020: 9).
The executive branch has recently made strides to move the judiciary further to the right through increasingly strategic appointments. This is exemplified by Donald Trump’s nomination of Amy Coney Barrett, a notoriously conservative emblem of religious extremism with little experience in the legal field, which has resulted in a “6-3 far-right majority on the Supreme Court” (Rahman, 2020: 3).
This majority allowed several conservative policies to be enacted, including the dismantling of “free and fair elections by needlessly gutting the Voting Rights Act” and the suppression of votes of “Black and brown Americans” (Rahman, 2020: 5). Trump’s strategy in nominating Barrett was to “pack the courts with partisans” and hold onto Republican power, despite “the party’s minority level of popular support” (Rahman, 2020: 6). It is now clear that the Court has undeniable affiliations with political parties, “linking the court even closer to partisan battles” (Long, 2020: 8).
In conclusion, the Supreme Court is far from the unbiased and non-partisan entity it was envisaged to be. Justices are meant to answer to no other body than the Constitution and uphold the ideals of impartiality, even when under pressure – often escalating to intimidation – from Congress, Presidents, and the American population. Yet throughout history, we have seen verdicts handed down based on political influence and according to political party lines. Moreover, the emergence of radical political movements has only reinforced the political partisanship that is present throughout the American government, including within the judiciary branch itself. As a result of this continuing power struggle, justices can be perceived as politicians in robes.
Bibliography
Black, E. 2012, How the Supreme Court has come to play a policymaking role, Opinion, MinnPost, 7-14
Garoupa, N. 2016, Comparing Judicial Activism - Can we Say that the US Supreme Court is more Activist than the German Constitutional Court?, Politics and Philosophy I: Democracy in Question, Revista Portuguesa de Filosofia, 1098-1101
Long, E. 2020, Where the politicization of the US Supreme Court could lead, Politics/Election 20’ Edition, The Conversation, 4-8
McKay, D. 2017, American Politics and Society, Chapters 15-16, Wiley-Blackwell, Ninth Edition, 323-363
Pacelle, R. 2015, The Supreme Court in a Separation of Powers System: The Nation's Balance Wheel, First Edition, Routledge, Taylor and Francis, 15-18
Pareene, A. 2020, Supreme Court Justices Are Politicians Too, Politics, The Soapbox, The New Republic, 8-9
Rahman, S. 2020, The US Supreme Court has become a threat to democracy: Here's how we fix it, US Politics, The Guardian, 3-6
Spitzer, E. 2020, What is Judicial Activism?, Humanities Issues, ThoughtCo., 5-6
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