Have the US Supreme Court stayed away from the political battleground?

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Introduction

  • There has been debate about whether the Supreme Court has become politicised.
  • The Supreme Court is the highest court in America and forms the judiciary branch of the separation of powers.
  • There are nine members of the Supreme Court: one chief justice and eight associate justices.
  • The number of justices is fixed by Congress and has remained unchanged since 1869.
  • Justices are nominated by the president and confirmed by a simple majority in the Senate – Robert Bork (nominated by Reagan in 1988) was rejected by the Senate, receiving just 42 votes in favour
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5-4 decisions

  • One argument that would agree that the Supreme Court has become politicised involves the increasing number of 5-4 decisions.
  • This trend suggests that justices are unable to leave their political beliefs at the courtroom door.
  • Considering that the bench consists of five supposed ‘conservative’ justices and four alleged ‘liberal’ justices, this trend only highlights the view that the court is becoming increasingly politicised.
  • In the UK, justice appointments are not political appointments and consequently, it is not politicised.
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Overturn precedents

  • A further argument that agrees that the Supreme Court has become involved in politics is a single appointment can overturn precedent.
  • This activist action can be explained by a change in the composition of the Supreme Court bench.
  • Moderate Sandra Day O’Connor was replaced by conservative Justice Alito and so can change the outcome of decisions. 
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Political issues

  • The power of judicial review has led to the Supreme Court becoming involved in a host of political issues (freedom of speech Texas vs Johnson and abortion rights Roe vs Wade) this gives the Court its political importance.
  • Many issues dealt with by the Court are hot-button political issues (matters over which political parties disagree and elections are fought). 
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Appointments

  • Justices are appointed by a politician (the president) and confirmed by politicians (the Senate).
  • Appointments to the Supreme Court are also an issue in many presidential elections such as the 2000 election.
  •  The Supreme Court ruled that the manual recount devised by the Florida Supreme Court was unconstitutional as it violated the 14th Amendment clause of “equal protection”.
  • This was seen by many as the court literally handing the election to George W. Bush.
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Explaining decisions

  • However, some would argue that the Supreme Court is not a political institution.
  • One argument that disagrees with the question involves justices having to write detailed explanations that show why their decision is constitutionally viable.
  • Justice Roberts once stated “justices are like umpires, they do not make the rules, they apply them”.
  • These verdicts have to prove why the verdicts are constitutionally viable.
  • Therefore if an explanation was weak, it could be argued that it is a political verdict. But the majority of decisions do consist of some constitutional viability. 
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Tenure

  • Life long tenure so no political pressure once you have been appointed.
  • Despite being nominated by presidents there is no pressure to act in accordance to his views once they have been appointment Eisenhower said nominating Earl Warren was the biggest mistake he made.
  • They are away from the public eye and are not elected by the electorate and so don’t have to campaign meaning they have no reason to fear the public’s opinion or being re-elected.
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Unanimous decisions

  • A further argument that disagrees is that the majority of cases are decided unanimously.
  • Under the Roberts Court, 43% of cases have been unanimous.
  • This indicates that in the majority of cases, justices are able to reach consensus between each other. This is in spite of justices holding differing political views.
  • Justices are able to reach wide agreement based on individual cases evidence rather than on their political bias. 
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Personal beliefs

  • A final argument is that justices being able to put their personal beliefs aside when making decisions.
  • In Texas vs. Johnson 1989, the Supreme Court ruled that individuals contain the right to burn the US flag under the first amendment right to free speech.
  • Justice Kennedy, who voted in favour of this, doesn’t believe that people should burn the US flag.
  • However, he pertains that this activity is constitutionally protected.
  • Therefore, Kennedy did not allow his personal views to inhibit Americans right to take part in the activity. 
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Conclusion

  • Can be seen as political due to opinions of them legislating from the bench however due security of tenure they have no reason to be political and can just focus on their primary role of interpreting the constitution 
  • lacking of textual fidelity nowadays and increase in judicial activism has allowed people to be accused of politicisation however this is all just down to the interpretation - the job they were hired to do
  • despite arguments for politicisation I see a stronger front of not being political and so that is how I would conclude
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