Evaluate the view that the Supreme Court has become politicised rather than judicial

Question 1

intro

Answer 1

consists of 9 justices, the nations highest judicial body. As the theorist Wellington and current Chief Justice John Roberts say, the supreme court justices should act as ‘neutral umpires’. However, the reason a debate has arisen is because the supreme court has become increasingly politicised, due to the appointment process as well as the increased partisanship of the court. Weakly said that the Supreme Court is still neutral
LOA - Supreme Court has become politicised rather than judicial

Question 2

para 1 theme

Answer 2

appointment process

Question 3

para 2 theme

Answer 3

politicised cases

Question 4

para 3 theme

Answer 4

pressure groups and public influence

Question 5

para 1 - appointment process

Answer 5

• Justices are nominated by president, president has incredible influence on political composition of the court. For example, the nomination and appointment of the Conservative Amy Coney Barratt by Donald Trump created a 6-3 conservative majority in the court, after the death of RBG. This has meant that nominations have become entirely based off ideology, rather than capabilities. This presents an issue on topics like abortion, gay rights and healthcare.
  This influence has led to the appointment process becoming very political. After Antonin Scalia death in 2016, Barrack Obama was presented with the opportunity to significantly change the balance of the court. However, Mitch McConnell announced that no Obama nominee would be confirmed, due to the election coming up. However, in a similar scenario, McConnell would rush through Trump’s nomination of Amy Coney Barratt, to create a 6-3 court showing the politicisation of the process

Question 6

para 1 - however

Answer 6

Before nominees are appointed, they are subjected to background checks and interview with the FBI, an assessment from the American Bar Association, a confirmation hearing in the Senate Judiciary Committee and finishing with the requirement for a majority vote in the Senate. The extensiveness of the process upholds neutrality, ensuring that unsuitable candidates are not appointed. E.g., the last rejected nominee, Robert Borke (1987) was a very controversial figure having portrayed anti abortion and anti-civil rights views, receiving an unfavourable recommendation by the Senate Judiciary Committee. Senate rejection 58042. Judges lie Antonin Scalia have all passed through this process with a well-qualified assessment and unanimous vote in the Senate

Question 7

para 1 - rebuttal

Answer 7

Unanimous votes are now non-existent in the appointment process showing the extent of polarisation. Both RBG and ACB received the highest rating of well qualified, yet Ginsburg passed neat unanimously (96-3), whilst ACB got zero democrat votes. As put by Chief Justice John Roberts, you can no longer expect that the best candidate will become a supreme court judge but instead that the most politically viable one will

Question 8

para 2 - politicised cases

Answer 8

• Through judicial review, a power of judge posses to find laws and governmental actions unconstitutional, justices can strike down actions or acts of the elected branches. In fact it was effectively the SC who decided who was President in 2000 in the case Bush v Gore.
  
  • The power of judicial review has gone beyond constitutional interpretation, with the SC also adjudicating alleged violations of federal laws by state law or by private organisations. Judicial review puts the SC into a more superior place than Congress and the President in matters of legislation and public policy, what has been described as ‘government by judiciary’. The Liberal Judge Sonia Sotomayor was quoted saying ‘the Supreme court is where policy is made’. This has been supported by Bickell’s theory of the ‘counter-majoritarian’ Supreme Court, claiming it has been excessively powerful, acting as an unelected force which acts against the elected branches.
  • According to President Obama, ‘an activist judge is somebody who has ignored the will of Congress, ignored democratic process and tried to impose judicial solutions on problems instead of letting the process work itself through politically’ For example, in the National Institute of Family and Life Advocates v Becerra case in 2018, Chief Justice John Roberts showed judicial activism when he voted to strike down a California state law that required religious pregnancy crisis centres to provide women with information about how to terminate their pregnancy
  • Judicial activism has been seen in majority divisive cases like Obergefell v Hodges which allowed same-sex marriage and Roe v Wade that allowed abortion. In both cases, the Supreme Court was accused of being a quasi-legislature, using judicial review to make laws despite being unelected and unaccountable.
  • Judicial review dates back to Marbury v Madison (1803).
    There have been further limitations on judicial decisions. In the Roberts court, there has been the most amount of cases decided on 5-4 margins as the Liberal and Conservatives Blocs remain at odds on major issues. Furthermore, it is the changing of these blocs that can create many issues. In the case McConnell vs FEC, the Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act. However, only 7 years late the Court would rule against it

Question 9

para 2 - however

Answer 9

• The way in which cases emerge is still judicial. The SC can only take cases on a constitutional basis and make decisions on the wording of the constitution. Therefore, political bias is irrelevant to the decision making process. For example, in June Medical Services, LLC , Russo, chief justice John Roberts struck down a Louisiana Law that would have limited abortions to one single doctor in the state who had the necessary privileges to send patients needing hospital treatment to a nearby hospital. Roberts cited the need to follow the precedent set in 2018 in Whole Woman’s Health, even though he may not have personally argued with striking down the law
  
  • Judicial restraint and minimalism acts as limitation. Judicial restraint is when a justice sees their role on the SC is a far more limited fashion. Justices should allow policy created by Congress and the President to stand. This is ‘stare decisis’ or ‘let the decision stand’. Therefore, past court cases should set precedents for current cases. This idea of legal restraint is the reason why judges have not revisited cases like Roe v Wade, despite the court being a conservative majority.
  • Even if the SC wanted to pursue a legislative campaign and influence policy, their reliance on the other branches acts as a further way of keeping the court judicial. Although the SC can make rulings, they rely on the other branches to implement these. For example, in Brown v the Board of Education 1954, the SC allowed civil rights. However, it took ten years for this to materialise with the passing of the CRA in 1964. This reliance on the other branches limits the SC from making policy, as Sonia Sotomayor would suggest.
    The gov also has further superiority over the SC with amendments. They can overturn any preceding cases in the SC. For example, the 16th amendment allowed national income tax despite it being banned by the SC, which found it unconstitutional in reference to the 10th amendment in the pollock v Farmers’ Loan and Trust case (1895)

Question 10

para 2 - rebuttal

Answer 10

The fact that an unelected and unaccountable branch of government can overturn other decisions by the legislative and executive shows the true extent of the court politicisation. For example, the fact that the SC could stop the President from vetoing parts of bills in Clinton v City of New York 1998 shows the extent of its political involvement

Question 11

para 3 - pressure groups and public influence

Answer 11

• Pressure groups and business can issue amicus curae briefs. There briefs give groups large amount of influence in the eventual outcome rather detracting from the courts political neutrality. For example, 57 briefs were sent to the court before California vs Bakke (1978), whilst Aplle and Google Submitted Amicus briefs over the FBI’s request for apple to unlock the phone of a terrorist.
  
  • In 2017-2018, there were 890 briefs used in 63 cases. In fact, 100% of cases had at least one brief submitted. This certainly shows the extent to which pressure groups and the public can influence the court
    Public influence can be exerted in the amendment process. E.g. appointment of B Kavanaugh, there were protests, including in the committee room during his senate hearing, due to allegations of him sexually assaulting Prof Christine Ford at College. Back by the #metoo campaign. Pro choice NARAL lobbied against Kavanaugh’s appointment

Question 12

para 3 - however

Answer 12

• Supreme Court justices are exempt from public influence. E.g. despite the mass opposition, Kavanaugh was appointed on October 6th 2018
  
  • Judicial independence. Justices have life tenure, with them only leaving the court due to death, retirement or impeachment, and protected salaries, with the constitution saying that justices ‘shall, at stated time, receive for their services, a compensation, which shall not be diminished during their continuance in office. In 2018, they were paid $255,300.
    Since the attempted impeachment of Justice Samuel Chase in 1803, justices can no longer be remove due to their judicial decisions. This was where the House impeached chase for letting his partisan leanings affect his court decisions, with him eventually being acquitted by the Senate

Question 13

para 3 - rebuttal

Answer 13

• The court appears to shy away from hearing some of the more controversial cases, such as a lack of gun control cases or unwillingness to hear cases about gerrymandering, suggesting the court’s recognition of public opinion.
  Judges will purposed retire during certain presidency to ensure that their ideologically matched by their replacement. E.g. Liberal justices Blackman, Stevens and Souter all purposefully retired under Democrat presidents