Politics Review Article Robert Singh

A political, not a judicial, institution? Feb 2015

In this article Robert Singh explains the dual role of the US Supreme Court as a judicial and a political institution

A few months before the 2012 presidential election, the US Supreme Court handed President Barack Obama a major political victory by upholding the constitutionality of his administration's healthcare reform. Contrary to many expectations, the chief justice, John Roberts — a reliable conservative — not only joined the 5-4 majority but wrote the decision in National Federation of Independent Business Sebelius (2012).

Yet a mere 2 years later, in Burwell v Hobb Lobby, Roberts joined his conservative colleagues in striking down a key aspect of the Affordable Care Act of 2011 controversially ruling that corporations controlled b religious families cannot be required to pay for contraception coverage for their female employees.

It is commonly presumed that judges should merely interpret rather than 'make' the law. As unelected figures judges lack democratic legitimacy. Their role should therefor be akin to umpires in sports games, applying the rules in neutral way. But if rules were that straightforward to apply reconciling the facts of a given case with constitutional any statute law and common law precedent to yield a decision perhaps we could simply turn this role to computers. In the real world, interpretation is neither clear nor simple, an legitimate differences of opinion — and politics — pervade our understanding of the law. Nowhere is this clearer that in the case of the Supreme Court.

The court as a 'political' institution

Five reasons explain why, as well as being a judicial institution, the court is a crucial political actor in the system of government.

As De Tocqueville once remarked, 'scarcely any political question arises in the US that is not resolved sooner or late into a judicial question'. In the most litigious society in the world, the court is the most authoritative interpreter of the US Constitution.

Membership of the court is a prestigious matter. With only nine members, nominations represent key presidential opportunities and a president's nominee requires the approval — the 'advice and consent' — of the US Senate to be confirmed. While — as Table 1 shows — presidents of both parties seek to appoint justices who share their broad political philosophy, not all succeed (for example, Ronald Reagan's nomination of Robert Bork was rejected in 1987 by the biggest margin in US history, 58-42). In addition, some presidents manage to appoint more justices than others.

The court itself possesses substantial autonomy. The justices are appointed for life and can only be removed by impeachment, so presidents cannot strongly influence, much less control the justices whom they succeed in getting on the court. Moreover, the court independently chooses what outstanding or urgent cases require its adjudication.

The 2013-14 term: judicial politics as usual?

A good sense of the court's dual role as a judicial and a political institution can be gleaned from some of the most important rulings that it decided in its last year (Table 3). Over the 2013-14 term, the court examined a range of controversial cases, involving questions of freedom of speech, campaign finance, environmental regulation, healthcare, warrantless arrests, presidential power and affirmative action. While none of these may have been landmark cases in the way of Brown and Roe, each has important implications for the relationship between the individual citizen and the state, for government authority over civil rights, and even for the very nature of US democracy.

Table 3 Selected cases from the 2013-14 term

Case Decision Concerning

Burwell v Hobby Lobby 5-4 The court ruled that corporations controlled by religious families cannot be required

to pay for contraception coverage for their female workers — a decision that may affect many other kinds of religious objections from businesses.

Hall v Florida 5-4 The justices rejected Florida's IQ cut-off as too rigid to decide which mentallydisabled people must be exempt from the death penalty. The case refined a 2002 ruling that banned executing the mentally disabled but left the determination largely to the states. The ruling may spare the lives of up to 20 death row prisoners.

Town of Greece v Galloway

Schuette v BAMN

5-4 The court ruled that two boards may start their meetings with sectarian prayers,

rejecting a First Amendment challenge from citizens arguing that the practice offended them.

6-2 (Kagan The court upheld a Michigan voter initiative that banned taking account of race in

recused) admissions to the state's public universities.

As these cases illustrate, on some issues the court perceives the desirability of a unanimous decision, especially where — as in the NLRB v Noel Canning case — questions of the powers of other branches of the federal government are concerned. In several other instances, though, where the Roberts Court has been closely, deeply and bitterly divided for years between opposing liberal and conservative blocs, the narrowest 5-4 rulings have decided what the Constitution allows or prohibits. For instance, in the Burwell (contraceptive coverage), Harris (public unions), McCutcheon (campaign finance) and Town of Greece (religious freedom) rulings, the four most conservative justices were joined

by the swing justice, Anthony Kennedy, to prevail. In Hall (capital punishment), Kennedy sided with the four liberal justices to make up the majority.

Although, overall, a disproportionately large number of rulings were decided unanimously in this term, when it comes to key decisions, the pattern of recent years was again repeated: a series of narrow majorities in which Kennedy'svote is typically the one that, ultimately, decides tlconstitutionality of particular laws.

Conclusion

That Supreme Court justices have strong opinions of the own — on how the Constitution should be interpreter good public policy, politics and more — is clear enougl But acting as both judicial and political figures does m mean that the justices are acting as partisan figures, mere 'politicians in black robes'. As Table 4 records, ova an entire generation, since Richard M. Nixon becarr president in January 1969, a total of 16 Supreme Cou justices have either retired from, or died in, office. C these, 12 were replaced by a justice nominated by Republican president. Over this time, a mere tI,A, Democratic presidents — Bill Clinton and Barack Obarr — appointed just four justices.

But does this mean that the court has acted more as political than a judicial institution? If one looks closely the divergent course of constitutional law over this tim it is difficult to answer with an unequivocal 'yes'. As tl influential US judge, Richard Posner, argues:

Throughout the entire 37-year period the Court has been moving rightward from the Warren Court, and, as expected, its decisions have been more conservative than they would have been had all the replacements been as liberal as the average member of the Warren Court. Yet most of the landmark Warren Court decisions, in areas such as criminal procedure, legislative apportionment, freedom of speech and religion, racial discrimination, prisoner rights, substantive due process, and constitutional rights, and the Warrenesque decisions of the Burger Court, such as Roe v Wade, have remained largely or entirely intact, even though most would have been decided differently by the present Court had they been given it to decide. The expansion of rights brought about by the Warren Court, and to a more limited extent by the Burger Court, has ceased; retrenchment is in the air. But there is no indication of a wholesale rejection of precedents that most of the current Justices may wish had never been created.

Posner, R. (2008) How Judges Think, Harvard University Press, pp. 55-56

In a common law system, precedent matters. As such, while politics inherently and intimately informs what the court chooses to look at, and how and why it rules as it does, the institution remains as much one dominated by law as politics.