Judicial Independence and Neutrality Flashcards
Judicial Independence
Judicial Independence refers to the Supreme Court that can take decisions without being controlled or overly influence by others.
Judicial Neutrality
Neutrality refers to a Supreme Court without bias, a court that does not have clear political views
arguments in favour of the view that the Supreme Court is independent
- Constitutional principle of separation of powers - The courts are separate and independent from the other branches with no shared membership. This minimises any opportunity to work together and for the other branches to apply pressure on the SC to rule in a partisan way, as a result, the courts regularly rule against the executive and legislature.
- Life tenure - Appointment is for life so neither the president nor congress can remove or threaten a justice who they disagree with, with removal. Though they can be impeached for only high crimes and misdemeanours which is almost impossible to properly quantify. The Founding fathers made certain stipulations in Article III of the Constitution. Effectively these mean that a Supreme Court Justice, once he has been appointed holds that position for life, as long as they don’t commit some high crime like treason, and also that their pay will never be cut, to cut down on the possibility of bribery. This means that a Justice need not fear dismissal or a pay cut if he makes a judgement that the President and his Party find unfavourable, instead, they can focus on making good decisions that benefit all of America, not just certain politicians.
- Highly qualified career judges - SC judges are not politicians and have careers as judges and are trained to apply the law.
examples of the view that the Supreme Court is independent - Constitutional principle of separation of powers
Major cases where they ruled against the government
Obergefell v. Hodges 2015
NFIB v. OSHA 2022
Citizens United v. FEC 2010
Boumediene v. Bush 2008
examples of the view that the Supreme Court is independent - Life tenure
Neil Gorsuch has, somewhat surprisingly, sided with the liberal judges of the court in a number of cases, on gay rights and on the deportation of illegal immigrants for example. This despite being appointed by Trump as a presumed conservative judge, on the advice of the conservative think tank the Federalist Society. Presidents have no control over judges once appointed
examples of the view that the Supreme Court is independent - Highly qualified career judges
March 2022: American Bar Association gives Jackson (a Court of Appeals Judge) the highest rating of ‘well qualified’.
arguments against the view that the SC is independent `
There is pressure to live up to the expectations of those that appointed the judge. for example, Trump appointed 3 justices for the sole purpose of “automatically’’ overturning Roe vs. Wade once he became president, ``because I am putting pro-life justices on the court.’’ he said in his final presidential debate. And all 3 of them voted to overturn it in Dobbs v Jackson WHO 2022. They were appointed by republicans and there is expectation for them to rule a particular way
counter argument against the view that Justicies are expected to rule a certain way
They are their own person and are independent in their own way. For example Neil Gorsuch
arguments against the view that the SC is neutral
- The nomination is partisan - Presidents like to nominate judges who think like them
- Confirmation process is partisan - Senate vote for or against judges based on whether they share their ideology
- Polarization has increased partisan appointments. The ideological polarisation has made the process much more partisan than it was. Until Reagan, qualifications and experience were the main criteria, but now that is often less important than ideology.
Examples are in FC on appointment process
example for Polarization has increased partisan appointments
RBG’s confirmation in 1993 was split 96-3
Anthony Kennedy in 1987 97 - 0 - though he was a moderate judge, appointed by purpose by Reagan due to the split in senate
Recent Confirmations
ACB - pro-life right-wing judge. The vote was a formality, with senators divided almost entirely along party lines, voting 52 of 53 to 48 with just one Republican breaking ranks(Susan Collins). Locking in rightwing domination of the nation’s highest court for years to come.
arguments for the view that the SC may be neutral
The rule of law requires judges to be neutral and not have any political agenda
They are highly qualified and apply the law as it is
Diverse - the court to some extent
reflects the population in social background. It ‘looks like america’ More diverse in US E.g. 1 of 12 female, 0 of 12 ethnic minority (UK); 4 of 9 female, 5 of 9 ethnic minority (US)
Argument against the view that they are independent
The government
maintains influence on
judges through the
appointment process.
Argument against the view that they are independent
The government
increasingly puts
pressure on judges, by
commenting on
judgements in the media.
Biden on the supreme court ruling Dobbs v Jackson - called it a tragic error President says conservative justices’ ruling to eliminate the federal right to abortion mean ‘the health and life of women in this nation are now at risk’
