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Question

Why is the debate on the composition of the United States Supreme Court so politicised?

Many other countries, such as the United Kingdom, Germany, Netherlands, European Union, and others, have courts that are broadly comparable to the Supreme Court. Yet I've never been aware of a politicised debate on who to appoint to serve in the highest court of those countries. What is it with the United States system that appointments to the Supreme Court are the topic of such a politicised and polarised debate, whereas the same does not happen in other countries?

I think the election process has part of the blame: you need only half of the Senate to pass, and the appointment is for life. This means that to begin with probably your party will give almost all the votes you need (there is less need to find a candidate with bipartisan support), and once your candidate "wins" you have "won" for good, the other party cannot promote more friendly candidates if they get the power, unless another justice dies/retires. — yesterday
@SJuan76 Until very recently you needed 60% to effectively get appointed. Republicans threw that out the window when they realized they'd never get that on any judge that was hard to the right. And politicization arguably happened long before McConnell's usurpation of Garland for Gorsuch. — yesterday
I don't think the politicization is all that recent. I can remember "Impeach Earl Warren" bumper stickers from the 60s. — yesterday
@FrankCedeno The question is very clearly not about what Congress can or cannot do in response to a SCOTUS decision. That would be another question. Probably a good one for the site, if it doesn't already exist. — 16 hours ago

score 47 · Answer 1 · 2018-10-08 05:04:59Z

This is the confluence of a large number of factors, several of which appear in other answers, but I'll focus on just two.

Short, vague, and old constitution

The United States has one of the shortest (and oldest) written constitutions in the world. It started with less than 5 thousand words and remains under 8 thousand after twenty seven amendments (with one repealed). By contrast, the constitution of India, adopted in 1950, has over 146 thousand words.

As a consequence of its brevity, many of the passages of the US Constitution are very vague and non-specific.

This means the judiciary has very little to work with. This in turn creates a fertile field for politicization. Something which seems constitutional under one interpretation of one line/section may seem unconstitutional under another interpretation (of another line/section). And the entire constitutionality of something can hinge upon how one defines a given word or phrase.

For example, many modern era decisions by the SCOTUS rely on the commerce clause or due process clause. But these don't say much more than "Congress can regulate interstate commerce" and "everyone has a right to due process", respectively. But there is no definition of what "regulate", "interstate", "commerce", or "due process" is (or even "everyone").

As such, how a jurist interprets the constitutionâ€”such as what these undefined words and ambiguous, imprecise statements actually meanâ€”becomes a major factor in how that jurist renders decisions and decides constitutional and legal matters. This in turn tends to correlate strongly with political ideology, though in a somewhat skewed sense: it correlates to a party's ideology moreso than the judge's (historically speaking). It is not always easy to predict how a judge will rule when holding a lifetime position, but any given political ideology will have certain judicial philosophies which are more amenable to its goals.

The relatively great power of the SCOTUS (far stronger than the UK's), and the lifetime appointments, make it a premium target for shaping the long term political future. Provided you put someone on the court who tends to rule in your favor.

Which brings me to the second factor.

Conservatives hate it when judges go liberal

Seriously hate it. Not that I expect liberals would be any different with a judge they thought would be liberal turning out to be a conservative, but this simply hasn't happened that often. As a historical matter, (federal) judges as a group trend to the political left over their tenure. The people and intellectual groups the judges naturally associated with were already left-leaning, which helped pull them to the left. Thus a self-enforcing selection bias was present: leaning and pulling to the left eliminated and discouraged more ardently right-leaning potential jurists.

Eventually, conservatives grew tired of Republican presidents nominating Supreme Court nominees that ended up being liberal. Thus organizations such as the Federalist Society and the Heritage Foundation arose. These provided right-leaning legal societies, so jurists wouldn't be pulled to the left by left-leaning colleagues; they could stay firmly entrenched on the right. One of their major goals is to ensure that Republican presidents never again nominate a candidate who wasn't a sure-thing conservative. These are also exactly the organizations who compiled Trump's short list of potential Supreme Court nominees.

The word "hate" is needlessly emotional for a Stack Exchange page. Especially since the context is akin to Ã¢Â€ÂœPlumbers hate it when pipes they installed leak. Seriously hate it.Ã¢Â€Â Neither insightful nor helpful. — yesterday
@DrunkCynic I've removed that bit. And as for BasilBourque's comment: that's not a problem. All the better if people immediately make such a comparison. It conversationally sets the stage for the point at hand, and should be rapidly clear as such. — yesterday
@PaulJohnson: That's an oversimplification. "Freedom of the press" doesn't mean anything until you start giving definitions. Obviously it does not mean "people should not charge money for printing presses," but it does not say that it does not mean that. That's a matter of interpretation. — 18 hours ago
This is a poor answer since it does not correct the unbelievable flaw in the premise of the question. The supreme court is not politicized, it is the selection process that has been politicized. Conservatives do not hate the court going liberal. What they need to keep explaining is that the court is not the place to create laws. It is to judge whether a law is constitutional or not. The way it is supposed to work is that congress would fix whatever the flaw in the law was and move on. — 18 hours ago
@FrankCedeno The answer wouldn't really change under such a shift, so there is not much to gain by trying to split that pedantic hair. And the context of the question makes it manifest that the selection process is what's being questioned. Also, feel free to tell the OP about issues you have with his question in the comments to the question, or by posting your own answer. — 17 hours ago

score 22 · Answer 2 · 2018-10-06 20:46:42Z

In the United Kingdom, Germany, Netherlands, European Union, and elsewhere, the equivalent of the Supreme Court has power comparable to the one in the United States.

This is not actually true: the Supreme Court of the USA can strike down legislation passed by Congress as unconstitutional, whereas the Supreme Court of the UK cannot do the same with primary legislation passed by Parliament.

However, considering only the United Kingdom, the answer to the question is remarkably simple. The US Constitution Article II, section 2 states that

The President ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law ...

In other words the appointment of a Supreme Court Justice requires the nomination by the President of the US (a politician) and the advice and consent of the Senate, a group of politicians who conduct most debates in public.

On the other hand, the procedure for appointment to the Supreme Court of the UK as defined in the Constitutional Reform Act 2005 (as amended) is that a candidate is nominated by a commission, most of whom will be judges and those who aren't will in practice probably be civil servants¹, then approved by the Lord Chancellor (a politician, nominally entrusted with ensuring the independence of the judiciary). Thus the debates are primarily between non-politicians and are held behind closed doors.

¹ Note that in the UK the Civil Service is supposed to be politically neutral, and certainly doesn't see the massive changes of personnel when a new government is elected that some countries do. It would not be in a civil servant's interests to propose a judge with extreme political views, because after the next election that civil servant's department may find itself trying to implement very different policy.

Even worse. The supreme court of germany has cancelled more laws from Angela Merkel since of all other governments since 45 together. AS such it IS political - political enough that one minister once said the court should keep away from ruling and the court answered he should make constitutional laws, please. It just is not communicated that openly. — yesterday
@TomTom: To be fair, Angela Merkel has been in power for a significant portion of the post-WW2 period ;) — yesterday
@TomTom: It is very political, as in, exerting a considerable political influence. But I think the question specifically asks for why who is a member of said court is not that politicized a topic. That is, e.g. in Germany, despite the considerable influence, there is no large debate when a new member gets appointed, and individual decisions by the court are not usually analyzed in terms of the identity and political stance of the judges. — 21 hours ago
Civil service in the US is also officially nonpolitical, and civil servants generally remain in their careers even as administrations change. Administrations do sometimes try to purge civil servants that they perceive to be politically hostile, but that's the exception rather than the rule. — 12 hours ago
@JustinLardinois, that was not intended as a reference to the US, or to any country in particular, but I added it as a post-script because this is an international site and I didn't want to assume that everyone would implicitly understand the point. — 11 hours ago

Patrick Dark 1033 · Answer 3 · 2018-10-08 16:29:13Z

The Supreme Court has ruled on partisan issues with substantial impact on the country

The Civil Rights cases were a group of five cases that said that the Thirteenth Amendment "merely abolishes slavery" and that the Fourteenth Amendment did not grant Congress the authority to regulate private affairs. The result of this was that the Civil Rights Act of 1875 (banning race discrimination for public services) was deemed unconstitutional, meaning that discrimination by race was effectively legal. By contrast, the 1954 Supreme Court ruling on Brown v. Board of Education stated that state laws segregating black and white students were unconstitutional. In both cases, the Supreme Court essentially had made a ruling that determined the direction of racial relations for decades to come.

A more recent case Obergefell v. Hodges, in which the Supreme Court ruled in 2015 that all states must issue marriage licenses to same-sex couples and to recognize same-sex marriages from other stats and provinces. Prior to that ruling, there were 14 states that did not permit this. As shown in the preceding paragraph, this is unlikely to be overturned without the court ruling differently on a future case.

Presidents have historically used nominations to choose judges favorable to their political agenda

In the 1930s, many parts of President Franklin D. Roosevelt's New Deal had been ruled to be unconstitutional by the Supreme Court. He proposed the Judicial Procedures Reform Bill of 1937, which would have increased the number of new justices, and in the short-term, he would have filled those new vacancies with justices that were sympathetic to his New Deal and would not rule it as unconstitutional. (The legislation ultimately failed).

Similarly, Lyndon B. Johnson appointed Thurgood Marshall partly to increase the likelihood that his civil rights legislation would hold up in the Supreme Court. During the 2016 Presidential Election, Donald Trump and Hillary Clinton indicated that they would nominate Supreme Court Judges who would overturn or sustain the controversial Roe v. Wade:

But when moderator Chris Wallace pressed him on whether he wanted the ruling [of Roe v. Wade] overturned, Trump said, "That will happen, automatically in my opinion," because he would get to nominate potentially several justices to the court.

In response, Hillary Clinton said, "I strongly support Roe v. Wade."

"I will defend Roe v. Wade, I will defend a woman's right to make her own decision," Clinton said.

During the 2016 election, a common reason for voters supporting either Hillary Clinton or Donald Trump was so that liberal or conservative justices would be appointed. (Anecdotally, I know several people who couldn't stand Donald Trump, but voted for him because if he won, he would nominate at least two conservative Supreme Court justices). Similarly, Democrats and Republican-controlled congresses have tried to approve justices whom they view to be sympathetic to their ideologies.

Lifetime appointments

If you are appointed to the US Supreme Court, you are appointed for life. This means that the Supreme Court contains members appointed by political groups that have long left power. As of this writing, the Supreme Court includes Clarence Thomas (appointed by George H.W. Bush in 1991) and Ruth Bader Ginsburg (appointed by Bill Clinton in 1993). If those presidents selected these justices because they matched their own ideological views, then those ideological views are still being represented for decades after they left office.

Overall, there have been ideological shifts since 1937 with conservative presidents nominating conservative judges and liberal presidents nominating liberal judges.

During the 2016 election, a common reason for supporting either Hillary Clinton or Donald Trump was so that a liberal or conservative justice would be selected, setting the standard for decades to come.

If by "ideological views" you mean deference to constitution and legislature, yes. But there never have been a substantial number of "conservative activist" judges, so if by "matched ideological views" you mean the legislative priorities of the presidents, then no, Republicans haven't been finding judges which promote their priorities/ideological views into the future. — yesterday
@Thunderforge and that is the irony is it not ? A judge should be neither conservative or liberal. He should go strictly by the rule book — yesterday
This answer would be better if it didn't tend to suggest the practice only began in the 1930s. The racist Supreme Court decisions of the Civil Rights Cases, 109 U.S. 3 (1883) wouldn't have been possible without a court full of racists. — yesterday
See also: the 1876 Supreme Court's appalling virtual endorsement of racist terrorism in United States v. Cruikshank, by not punishing even a single murderous perpetrator of The Colfax Massacre. — yesterday

score 9 · Answer 4 · 2018-10-06 22:28:33Z

TL;DR: other countries can invalidate court decisions by changing the law more easily.

Civil law

Many countries use a civil law system rather than the United States common law system. In a civil law system, the clear text of the statute overrides precedent. So if a statute says that it applies under this circumstance, then it is assumed to do so.

In a civil law system, if the legislature doesn't like a court decision, it can change the underlying law. Because courts are more strictly bound to enforce only the statutes that actually exist. In a civil law country, all the judges are expected to be textualists (a position associated with the right-wing in the US).

Parliamentary supremacy

The United Kingdom (like the US) is a common law jurisdiction. Precedent can override the statute. But in the UK, they have a principle of legislative supremacy. In short, in the UK, the parliament may change any law by a simple majority vote. As a result, if they don't like a court decision, they too can simply change the underlying law.

US constitution

The US has a constitution that is interpreted under common law. This means that the courts may invalidate laws, overruling the legislature. The only immediate fix for that is a constitutional amendment, which requires the approval of three quarters of the state legislatures. Further, the normal amendment method requires two thirds of both chambers of Congress.

In the longer term, the makeup of the Supreme Court could be changed. And that's what's happening. After the Court's overreach with Roe v. Wade, there arose a strong opposition that specifically wanted to override that decision either by amendment or by picking the right Supreme Court justices.

If the Supreme Court had left that decision to the states (where it had been), then abortion would have stayed a legislative fight. The pro-life movement would be less politically powerful and most people would not particularly care who was on the Supreme Court. But abortion was an issue that people could understand. That case built a political opposition to Supreme Court jurisprudence.

Don't believe me? Here's liberal constitutional scholar Cass Sunstein saying the same thing:

I think that some of the Warren Court's decisions were a little lawless and jumped too far too fast. In so many areas the court's ideals didn't have clear constitutional foundations. The Griswold v. Connecticut case, which created the general right to privacy, was that kind of ridiculously weak opinion. The court didn't identify a clear constitutional basis for saying that the ban on contraceptives within marriage was impermissible. The court referred to "penumbras" and "emanations"[in the language of the ruling] from the Bill of Rights. But the Bill of Rights doesn't have "penumbras" and "emanations"; it just has a catalog of rights. It would have been better to say that the ban was never enforced and it was a recipe for arbitrary and unpredictable action by the police in a way that does violence to the rule of law.

[...]

Roe v. Wade itself was probably a horrible moment for liberal politics and almost certainly created the Moral Majority. Roe simultaneously demobilized the pro-choice movement in politics and fired up the pro-life movement everywhere. There probably would've been an Equal Rights Amendment without [Roe v. Wade], less agitation with the process, and stronger legal commitments to sex equality in general. It's absolutely true that if the court goes in the teeth of the public, it can hurt the cause that you're trying to promote.

[...]

I think the Court should've said, in the Texas and Georgia cases [pertaining to Roe v. Wade], that these laws are so draconian in their reach that they're unconstitutional. The Texas law didn't allow abortion in cases of rape. So the court could've said very narrowly that we're not going to say anything general about what the Constitution says with respect to abortion -- but women who have been raped have a right to have an abortion. The Georgia law had procedural hurdles for women seeking abortions that seemed to intrude on women's interests and went well beyond what was necessary to make sure that the decision was reasonable and well-considered. The court could've said simply that the Texas law didn't have an exception in cases of rape, and the Georgia law went far beyond what is reasonable and necessary to protect fetal life. And that way there would've been a continuing dialogue between the states and the Supreme Court on the abortion issue.

[...]

Well, we don't want to fall in the trap of reading the Constitution to do whatever is good. This is the activist fallacy, on both the left and the right, which says that if something is very good, then the Constitution requires it. Even if the pro-choice people are correct, we have a Constitution that we're reading here. It's not true that the text and history of the Constitution, at the time, clearly supported the broad right to choose abortion. I am not saying that Roe v. Wade should be overruled. I don't think it should. It's been the law now for a long time. But I am saying that as a matter of pure self-interest, decisions like Roe often backfire.

In all, it's a combination of factors. The US Supreme Court is effectively more powerful relative to the legislature than the top courts of other countries where the courts cannot invalidate legislation. Further, the Supreme Court made a blunder by creating a right that had not previously existed that people opposed. Because of the same reasons that make the US Supreme Court more powerful, the only practical recourse that people had was to change the makeup of the Supreme Court. This polarized and politicized the Court in a way that previous overreaches (e.g. Wickard v. Filburn) had not.

A good answer, but can you clarify the two instances where you use the term overreach? Do you mean overreach according to people who thought it was overreach, or is there objective evidence that those cases were overreach? — yesterday
@gerrit: Those are the same. The stronger the objective evidence, the more people consider it to be overreach. — yesterday
@BenVoigt Not really. A common formula is "I call it overreach because it's X-friendly and I hate X." A consistent valuation in scholarly works is helpful but hardly necessary. — yesterday
@zibadawatimmy: The evidence is objective. Only the choice to accept it or spin it is potentially subjective, but the more overwhelming the evidence, the more likely interested parties are to accept it at face value. — yesterday
@BenVoigt You are conflating "there are lots of people who think lizard people live in the center of the earth and control our society" with "it is objectively true that there are lizard people who live in the center of the earth and control our society." One does not need objective evidence to form an opinion, such as drawing negative conclusions about things you dislike. The existence of "lots of people think this is overreach" in no way implies "there is objective evidence this is overreach". — yesterday

score 3 · Answer 5 · 2018-10-07 00:04:58Z

In Canada, judges are appointed to the supreme court by the prime minister and cabinet (i.e. the leader of whichever party holds the majority of seats in parliament).

This is without consulting the opposition parties ...

Judicial_appointments_in_Canada#Criticism_of_process ...

The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliament or opposition political parties. Critics[who?] have alleged that this process has allowed the Prime Minister to effectively "stack" the courts with ideologically like-minded individuals who will support the current government's stance.

... which limits the amount of opposition.

Though apparently the most recent development was for the Prime Minister to choose from a shortlist of candidates, who were unanimously approved by a committee with members from several of the biggest parties:

Supreme Court appointments highlight a secret process

Harper made his latest appointments from a shortlist of six unanimously approved by a selection committee that included Conservatives, NDP and Liberal MPs. Its work was completely secret.

How they manage to come to a unanimous decision, I don't know, but note one of the comments ...

However, Liberal Leader Bob Rae defended Moldaver as a Ã¢Â€Âœhighly talented and qualified judge,Ã¢Â€Â and Karakatsanis as Ã¢Â€Âœsomebody who is not a political partisan at all. I know both her and her husband and IÃ¢Â€Â™ve known them both for many many years and theyÃ¢Â€Â™re both very fine people.Ã¢Â€Â

... maybe the judges are non-partisan.

There is a Constitution in Canada (so unlike in the UK it is of interest to know e.g. whether a law is "constitutional"). The constitution is more recent though than the American one, maybe (I don't know) it's not so difficult to interpret.

I think Canadians understand that if you want to change the law, you do that by electing the legislature and executive, not by appointing judges.

Also I suppose there's less history of federal-law-imposed-on-provinces than there has been in the States (viz the civil war in the States, and judges needing to interpret the 14th Amendment there which has been controversial and political, pitting States Rights versus Civil Rights).

FWIW the Constitution also has a "notwithstanding" clause which allows the provincial legislature[s] to override constitutional rulings (but only on matters that are subject to provincial rather than federal authority).

IMO the tone of the mass media (TV and newspapers) are different in Canada too.

Finally there probably is some "politicised and polarised debate", in parliament -- but few of the general citizenry follow parliamentary debate in any detail or verbatim.

As for why it is (or how it came to be) politicised in the States, there's a summary of that here (by a professor of constitutional law): Requiem for the Supreme Court — yesterday
Canada's constitution is a weird beast. It's an amalgamation of acts and traditions. The act which created the current constitution was enacted in 1982, so in that sense the (current) constitution is very new. But it compiles many (much) older acts and traditions into the body of the constitution, and their Supreme Court has apparently ruled that the enacted list isn't exhaustive. — 23 hours ago
@zibadawatimmy Perhaps you're right. So should I not call it "more modern", nor, "not so difficult to interpret"? (see also e.g. Sources of the constitution on Wikipedia). I think of it as dating to 1982. — 23 hours ago

score 0 · Answer 6 · 2018-10-07 03:34:47Z

The Supreme Court of the United States is so politicized because of power shifting beyond the Checks and Balances built into the republic government of the United States by the Constitution. This is mostly centered in the political cowardice of Congress, and the apparent unwillingness to pass laws.

The current expansive interpretation of the General Welfare Clause, allowing for a vast expansion in spending by the Federal government, was enshrined by the Supreme Court in the United States V Butler. This instilled a Hamiltonian reading of the Tax clause, which was a departure from 150 years of practice holding it as a dependent portion of the Taxing powers of the Federal government to appropriate money to enact the other enumerated powers. In this reading, the Supreme Court created the General Welfare Clause, a new enumerated power, beyond those ratified or amended.

Similarly, the current shift of legislative power from the Legislative Branch to the regulatory agencies of the Executive Branch was enabled by the J. W. Hampton, Jr. & Co. v. United States decision. From here, the Congress could surrender legislative powers to the Executive, as long as they provided a 'intelligible principle.'

Also, there is the expansive approach to the Interstate Commerce clause, from cases like Wickard V Filburn and Kelo v New London, letting the Federal government reach deeper into an individual's business.

Let us continue this discussion in chat.
â€“Â Drunk Cynic
yesterday — yesterday

MikiRaven 1005 · Answer 7 · 2018-10-07 09:04:30Z

As stated in other answers, there is not single answer, but many partial ones.
One of them is trust people give to courts. The supreme court cannot create its own cases, bug issuse get to the court only if someone brings the there.

Bringing a claim to the supreme court is lengthy and costly, people won't do it if they didn't believe in the court or if there was strong and uncontested political decision on those issues. Politicians can "overrule" many court decisions by passing a law (or even new constitution). Or they can limit powers of the court. Or they can increase the number of justices... There are many ways to limit its political role. But they usually don't. On the contrary - when the Supreme Court speaks, politicians stay silent and listen.

So, big part of the answer is - U.S. Supreme Court is so politicised, because people let it be so politicised and want it so politicised.

What do you mean by "people let it be politicised". Very few people have a say in appointing and confirming the justices. So, it's not really the people who let it happen, right? — yesterday
People don't appoint and confirm justices (though they elect those who do, so they have some say). But people let it be politicised because the go to the court with their political problems. As I said, the court cannot, by itself, decide issuse. Someone must bring it there and someone must respect its desicion. If people didn't litigate on those issues and if politicians changed the law immediately after a judgement they don't like, the court would be much weaker. — yesterday
I don't see how that requires politicising the court. Indeed, many other countries don't politicise their courts and it works well. — yesterday
I don't say it REQUIRES politicising the court. I say it CAUSES politicising the court. Many other countries don't politicise their courts, because people (and politicians!) don't go with their issues to courts and politicians enact law with less space for courts. — yesterday
In many other countries (including some named in the question) people can also take it to a higher court until it goes to the highest court. I think many of the statements in your answer apply to those countries as well. So the answer that the people let it be politicised in the US but not to the same extent elsewhere leads to the question why people in the US let it whereas the people in those other countries don't seem to. — yesterday

score 47 · Answer 8 · 2018-10-08 05:04:59Z

This is the confluence of a large number of factors, several of which appear in other answers, but I'll focus on just two.

Short, vague, and old constitution

The United States has one of the shortest (and oldest) written constitutions in the world. It started with less than 5 thousand words and remains under 8 thousand after twenty seven amendments (with one repealed). By contrast, the constitution of India, adopted in 1950, has over 146 thousand words.

As a consequence of its brevity, many of the passages of the US Constitution are very vague and non-specific.

This means the judiciary has very little to work with. This in turn creates a fertile field for politicization. Something which seems constitutional under one interpretation of one line/section may seem unconstitutional under another interpretation (of another line/section). And the entire constitutionality of something can hinge upon how one defines a given word or phrase.

For example, many modern era decisions by the SCOTUS rely on the commerce clause or due process clause. But these don't say much more than "Congress can regulate interstate commerce" and "everyone has a right to due process", respectively. But there is no definition of what "regulate", "interstate", "commerce", or "due process" is (or even "everyone").

As such, how a jurist interprets the constitutionâ€”such as what these undefined words and ambiguous, imprecise statements actually meanâ€”becomes a major factor in how that jurist renders decisions and decides constitutional and legal matters. This in turn tends to correlate strongly with political ideology, though in a somewhat skewed sense: it correlates to a party's ideology moreso than the judge's (historically speaking). It is not always easy to predict how a judge will rule when holding a lifetime position, but any given political ideology will have certain judicial philosophies which are more amenable to its goals.

The relatively great power of the SCOTUS (far stronger than the UK's), and the lifetime appointments, make it a premium target for shaping the long term political future. Provided you put someone on the court who tends to rule in your favor.

Which brings me to the second factor.

Conservatives hate it when judges go liberal

Seriously hate it. Not that I expect liberals would be any different with a judge they thought would be liberal turning out to be a conservative, but this simply hasn't happened that often. As a historical matter, (federal) judges as a group trend to the political left over their tenure. The people and intellectual groups the judges naturally associated with were already left-leaning, which helped pull them to the left. Thus a self-enforcing selection bias was present: leaning and pulling to the left eliminated and discouraged more ardently right-leaning potential jurists.

Eventually, conservatives grew tired of Republican presidents nominating Supreme Court nominees that ended up being liberal. Thus organizations such as the Federalist Society and the Heritage Foundation arose. These provided right-leaning legal societies, so jurists wouldn't be pulled to the left by left-leaning colleagues; they could stay firmly entrenched on the right. One of their major goals is to ensure that Republican presidents never again nominate a candidate who wasn't a sure-thing conservative. These are also exactly the organizations who compiled Trump's short list of potential Supreme Court nominees.

The word "hate" is needlessly emotional for a Stack Exchange page. Especially since the context is akin to Ã¢Â€ÂœPlumbers hate it when pipes they installed leak. Seriously hate it.Ã¢Â€Â Neither insightful nor helpful. — yesterday
@DrunkCynic I've removed that bit. And as for BasilBourque's comment: that's not a problem. All the better if people immediately make such a comparison. It conversationally sets the stage for the point at hand, and should be rapidly clear as such. — yesterday
@PaulJohnson: That's an oversimplification. "Freedom of the press" doesn't mean anything until you start giving definitions. Obviously it does not mean "people should not charge money for printing presses," but it does not say that it does not mean that. That's a matter of interpretation. — 18 hours ago
This is a poor answer since it does not correct the unbelievable flaw in the premise of the question. The supreme court is not politicized, it is the selection process that has been politicized. Conservatives do not hate the court going liberal. What they need to keep explaining is that the court is not the place to create laws. It is to judge whether a law is constitutional or not. The way it is supposed to work is that congress would fix whatever the flaw in the law was and move on. — 18 hours ago
@FrankCedeno The answer wouldn't really change under such a shift, so there is not much to gain by trying to split that pedantic hair. And the context of the question makes it manifest that the selection process is what's being questioned. Also, feel free to tell the OP about issues you have with his question in the comments to the question, or by posting your own answer. — 17 hours ago

score 22 · Answer 9 · 2018-10-06 20:46:42Z

In the United Kingdom, Germany, Netherlands, European Union, and elsewhere, the equivalent of the Supreme Court has power comparable to the one in the United States.

This is not actually true: the Supreme Court of the USA can strike down legislation passed by Congress as unconstitutional, whereas the Supreme Court of the UK cannot do the same with primary legislation passed by Parliament.

However, considering only the United Kingdom, the answer to the question is remarkably simple. The US Constitution Article II, section 2 states that

The President ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law ...

In other words the appointment of a Supreme Court Justice requires the nomination by the President of the US (a politician) and the advice and consent of the Senate, a group of politicians who conduct most debates in public.

On the other hand, the procedure for appointment to the Supreme Court of the UK as defined in the Constitutional Reform Act 2005 (as amended) is that a candidate is nominated by a commission, most of whom will be judges and those who aren't will in practice probably be civil servants¹, then approved by the Lord Chancellor (a politician, nominally entrusted with ensuring the independence of the judiciary). Thus the debates are primarily between non-politicians and are held behind closed doors.

¹ Note that in the UK the Civil Service is supposed to be politically neutral, and certainly doesn't see the massive changes of personnel when a new government is elected that some countries do. It would not be in a civil servant's interests to propose a judge with extreme political views, because after the next election that civil servant's department may find itself trying to implement very different policy.

Even worse. The supreme court of germany has cancelled more laws from Angela Merkel since of all other governments since 45 together. AS such it IS political - political enough that one minister once said the court should keep away from ruling and the court answered he should make constitutional laws, please. It just is not communicated that openly. — yesterday
@TomTom: To be fair, Angela Merkel has been in power for a significant portion of the post-WW2 period ;) — yesterday
@TomTom: It is very political, as in, exerting a considerable political influence. But I think the question specifically asks for why who is a member of said court is not that politicized a topic. That is, e.g. in Germany, despite the considerable influence, there is no large debate when a new member gets appointed, and individual decisions by the court are not usually analyzed in terms of the identity and political stance of the judges. — 21 hours ago
Civil service in the US is also officially nonpolitical, and civil servants generally remain in their careers even as administrations change. Administrations do sometimes try to purge civil servants that they perceive to be politically hostile, but that's the exception rather than the rule. — 12 hours ago
@JustinLardinois, that was not intended as a reference to the US, or to any country in particular, but I added it as a post-script because this is an international site and I didn't want to assume that everyone would implicitly understand the point. — 11 hours ago

Patrick Dark 1033 · Answer 10 · 2018-10-08 16:29:13Z

The Supreme Court has ruled on partisan issues with substantial impact on the country

The Civil Rights cases were a group of five cases that said that the Thirteenth Amendment "merely abolishes slavery" and that the Fourteenth Amendment did not grant Congress the authority to regulate private affairs. The result of this was that the Civil Rights Act of 1875 (banning race discrimination for public services) was deemed unconstitutional, meaning that discrimination by race was effectively legal. By contrast, the 1954 Supreme Court ruling on Brown v. Board of Education stated that state laws segregating black and white students were unconstitutional. In both cases, the Supreme Court essentially had made a ruling that determined the direction of racial relations for decades to come.

A more recent case Obergefell v. Hodges, in which the Supreme Court ruled in 2015 that all states must issue marriage licenses to same-sex couples and to recognize same-sex marriages from other stats and provinces. Prior to that ruling, there were 14 states that did not permit this. As shown in the preceding paragraph, this is unlikely to be overturned without the court ruling differently on a future case.

Presidents have historically used nominations to choose judges favorable to their political agenda

In the 1930s, many parts of President Franklin D. Roosevelt's New Deal had been ruled to be unconstitutional by the Supreme Court. He proposed the Judicial Procedures Reform Bill of 1937, which would have increased the number of new justices, and in the short-term, he would have filled those new vacancies with justices that were sympathetic to his New Deal and would not rule it as unconstitutional. (The legislation ultimately failed).

Similarly, Lyndon B. Johnson appointed Thurgood Marshall partly to increase the likelihood that his civil rights legislation would hold up in the Supreme Court. During the 2016 Presidential Election, Donald Trump and Hillary Clinton indicated that they would nominate Supreme Court Judges who would overturn or sustain the controversial Roe v. Wade:

But when moderator Chris Wallace pressed him on whether he wanted the ruling [of Roe v. Wade] overturned, Trump said, "That will happen, automatically in my opinion," because he would get to nominate potentially several justices to the court.

In response, Hillary Clinton said, "I strongly support Roe v. Wade."

"I will defend Roe v. Wade, I will defend a woman's right to make her own decision," Clinton said.

During the 2016 election, a common reason for voters supporting either Hillary Clinton or Donald Trump was so that liberal or conservative justices would be appointed. (Anecdotally, I know several people who couldn't stand Donald Trump, but voted for him because if he won, he would nominate at least two conservative Supreme Court justices). Similarly, Democrats and Republican-controlled congresses have tried to approve justices whom they view to be sympathetic to their ideologies.

Lifetime appointments

If you are appointed to the US Supreme Court, you are appointed for life. This means that the Supreme Court contains members appointed by political groups that have long left power. As of this writing, the Supreme Court includes Clarence Thomas (appointed by George H.W. Bush in 1991) and Ruth Bader Ginsburg (appointed by Bill Clinton in 1993). If those presidents selected these justices because they matched their own ideological views, then those ideological views are still being represented for decades after they left office.

Overall, there have been ideological shifts since 1937 with conservative presidents nominating conservative judges and liberal presidents nominating liberal judges.

During the 2016 election, a common reason for supporting either Hillary Clinton or Donald Trump was so that a liberal or conservative justice would be selected, setting the standard for decades to come.

If by "ideological views" you mean deference to constitution and legislature, yes. But there never have been a substantial number of "conservative activist" judges, so if by "matched ideological views" you mean the legislative priorities of the presidents, then no, Republicans haven't been finding judges which promote their priorities/ideological views into the future. — yesterday
@Thunderforge and that is the irony is it not ? A judge should be neither conservative or liberal. He should go strictly by the rule book — yesterday
This answer would be better if it didn't tend to suggest the practice only began in the 1930s. The racist Supreme Court decisions of the Civil Rights Cases, 109 U.S. 3 (1883) wouldn't have been possible without a court full of racists. — yesterday
See also: the 1876 Supreme Court's appalling virtual endorsement of racist terrorism in United States v. Cruikshank, by not punishing even a single murderous perpetrator of The Colfax Massacre. — yesterday

score 9 · Answer 11 · 2018-10-06 22:28:33Z

TL;DR: other countries can invalidate court decisions by changing the law more easily.

Civil law

Many countries use a civil law system rather than the United States common law system. In a civil law system, the clear text of the statute overrides precedent. So if a statute says that it applies under this circumstance, then it is assumed to do so.

In a civil law system, if the legislature doesn't like a court decision, it can change the underlying law. Because courts are more strictly bound to enforce only the statutes that actually exist. In a civil law country, all the judges are expected to be textualists (a position associated with the right-wing in the US).

Parliamentary supremacy

The United Kingdom (like the US) is a common law jurisdiction. Precedent can override the statute. But in the UK, they have a principle of legislative supremacy. In short, in the UK, the parliament may change any law by a simple majority vote. As a result, if they don't like a court decision, they too can simply change the underlying law.

US constitution

The US has a constitution that is interpreted under common law. This means that the courts may invalidate laws, overruling the legislature. The only immediate fix for that is a constitutional amendment, which requires the approval of three quarters of the state legislatures. Further, the normal amendment method requires two thirds of both chambers of Congress.

In the longer term, the makeup of the Supreme Court could be changed. And that's what's happening. After the Court's overreach with Roe v. Wade, there arose a strong opposition that specifically wanted to override that decision either by amendment or by picking the right Supreme Court justices.

If the Supreme Court had left that decision to the states (where it had been), then abortion would have stayed a legislative fight. The pro-life movement would be less politically powerful and most people would not particularly care who was on the Supreme Court. But abortion was an issue that people could understand. That case built a political opposition to Supreme Court jurisprudence.

Don't believe me? Here's liberal constitutional scholar Cass Sunstein saying the same thing:

I think that some of the Warren Court's decisions were a little lawless and jumped too far too fast. In so many areas the court's ideals didn't have clear constitutional foundations. The Griswold v. Connecticut case, which created the general right to privacy, was that kind of ridiculously weak opinion. The court didn't identify a clear constitutional basis for saying that the ban on contraceptives within marriage was impermissible. The court referred to "penumbras" and "emanations"[in the language of the ruling] from the Bill of Rights. But the Bill of Rights doesn't have "penumbras" and "emanations"; it just has a catalog of rights. It would have been better to say that the ban was never enforced and it was a recipe for arbitrary and unpredictable action by the police in a way that does violence to the rule of law.

[...]

Roe v. Wade itself was probably a horrible moment for liberal politics and almost certainly created the Moral Majority. Roe simultaneously demobilized the pro-choice movement in politics and fired up the pro-life movement everywhere. There probably would've been an Equal Rights Amendment without [Roe v. Wade], less agitation with the process, and stronger legal commitments to sex equality in general. It's absolutely true that if the court goes in the teeth of the public, it can hurt the cause that you're trying to promote.

[...]

I think the Court should've said, in the Texas and Georgia cases [pertaining to Roe v. Wade], that these laws are so draconian in their reach that they're unconstitutional. The Texas law didn't allow abortion in cases of rape. So the court could've said very narrowly that we're not going to say anything general about what the Constitution says with respect to abortion -- but women who have been raped have a right to have an abortion. The Georgia law had procedural hurdles for women seeking abortions that seemed to intrude on women's interests and went well beyond what was necessary to make sure that the decision was reasonable and well-considered. The court could've said simply that the Texas law didn't have an exception in cases of rape, and the Georgia law went far beyond what is reasonable and necessary to protect fetal life. And that way there would've been a continuing dialogue between the states and the Supreme Court on the abortion issue.

[...]

Well, we don't want to fall in the trap of reading the Constitution to do whatever is good. This is the activist fallacy, on both the left and the right, which says that if something is very good, then the Constitution requires it. Even if the pro-choice people are correct, we have a Constitution that we're reading here. It's not true that the text and history of the Constitution, at the time, clearly supported the broad right to choose abortion. I am not saying that Roe v. Wade should be overruled. I don't think it should. It's been the law now for a long time. But I am saying that as a matter of pure self-interest, decisions like Roe often backfire.

In all, it's a combination of factors. The US Supreme Court is effectively more powerful relative to the legislature than the top courts of other countries where the courts cannot invalidate legislation. Further, the Supreme Court made a blunder by creating a right that had not previously existed that people opposed. Because of the same reasons that make the US Supreme Court more powerful, the only practical recourse that people had was to change the makeup of the Supreme Court. This polarized and politicized the Court in a way that previous overreaches (e.g. Wickard v. Filburn) had not.

A good answer, but can you clarify the two instances where you use the term overreach? Do you mean overreach according to people who thought it was overreach, or is there objective evidence that those cases were overreach? — yesterday
@gerrit: Those are the same. The stronger the objective evidence, the more people consider it to be overreach. — yesterday
@BenVoigt Not really. A common formula is "I call it overreach because it's X-friendly and I hate X." A consistent valuation in scholarly works is helpful but hardly necessary. — yesterday
@zibadawatimmy: The evidence is objective. Only the choice to accept it or spin it is potentially subjective, but the more overwhelming the evidence, the more likely interested parties are to accept it at face value. — yesterday
@BenVoigt You are conflating "there are lots of people who think lizard people live in the center of the earth and control our society" with "it is objectively true that there are lizard people who live in the center of the earth and control our society." One does not need objective evidence to form an opinion, such as drawing negative conclusions about things you dislike. The existence of "lots of people think this is overreach" in no way implies "there is objective evidence this is overreach". — yesterday

score 3 · Answer 12 · 2018-10-07 00:04:58Z

In Canada, judges are appointed to the supreme court by the prime minister and cabinet (i.e. the leader of whichever party holds the majority of seats in parliament).

This is without consulting the opposition parties ...

Judicial_appointments_in_Canada#Criticism_of_process ...

The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliament or opposition political parties. Critics[who?] have alleged that this process has allowed the Prime Minister to effectively "stack" the courts with ideologically like-minded individuals who will support the current government's stance.

... which limits the amount of opposition.

Though apparently the most recent development was for the Prime Minister to choose from a shortlist of candidates, who were unanimously approved by a committee with members from several of the biggest parties:

Supreme Court appointments highlight a secret process

Harper made his latest appointments from a shortlist of six unanimously approved by a selection committee that included Conservatives, NDP and Liberal MPs. Its work was completely secret.

How they manage to come to a unanimous decision, I don't know, but note one of the comments ...

However, Liberal Leader Bob Rae defended Moldaver as a Ã¢Â€Âœhighly talented and qualified judge,Ã¢Â€Â and Karakatsanis as Ã¢Â€Âœsomebody who is not a political partisan at all. I know both her and her husband and IÃ¢Â€Â™ve known them both for many many years and theyÃ¢Â€Â™re both very fine people.Ã¢Â€Â

... maybe the judges are non-partisan.

There is a Constitution in Canada (so unlike in the UK it is of interest to know e.g. whether a law is "constitutional"). The constitution is more recent though than the American one, maybe (I don't know) it's not so difficult to interpret.

I think Canadians understand that if you want to change the law, you do that by electing the legislature and executive, not by appointing judges.

Also I suppose there's less history of federal-law-imposed-on-provinces than there has been in the States (viz the civil war in the States, and judges needing to interpret the 14th Amendment there which has been controversial and political, pitting States Rights versus Civil Rights).

FWIW the Constitution also has a "notwithstanding" clause which allows the provincial legislature[s] to override constitutional rulings (but only on matters that are subject to provincial rather than federal authority).

IMO the tone of the mass media (TV and newspapers) are different in Canada too.

Finally there probably is some "politicised and polarised debate", in parliament -- but few of the general citizenry follow parliamentary debate in any detail or verbatim.

As for why it is (or how it came to be) politicised in the States, there's a summary of that here (by a professor of constitutional law): Requiem for the Supreme Court — yesterday
Canada's constitution is a weird beast. It's an amalgamation of acts and traditions. The act which created the current constitution was enacted in 1982, so in that sense the (current) constitution is very new. But it compiles many (much) older acts and traditions into the body of the constitution, and their Supreme Court has apparently ruled that the enacted list isn't exhaustive. — 23 hours ago
@zibadawatimmy Perhaps you're right. So should I not call it "more modern", nor, "not so difficult to interpret"? (see also e.g. Sources of the constitution on Wikipedia). I think of it as dating to 1982. — 23 hours ago

score 0 · Answer 13 · 2018-10-07 03:34:47Z

The Supreme Court of the United States is so politicized because of power shifting beyond the Checks and Balances built into the republic government of the United States by the Constitution. This is mostly centered in the political cowardice of Congress, and the apparent unwillingness to pass laws.

The current expansive interpretation of the General Welfare Clause, allowing for a vast expansion in spending by the Federal government, was enshrined by the Supreme Court in the United States V Butler. This instilled a Hamiltonian reading of the Tax clause, which was a departure from 150 years of practice holding it as a dependent portion of the Taxing powers of the Federal government to appropriate money to enact the other enumerated powers. In this reading, the Supreme Court created the General Welfare Clause, a new enumerated power, beyond those ratified or amended.

Similarly, the current shift of legislative power from the Legislative Branch to the regulatory agencies of the Executive Branch was enabled by the J. W. Hampton, Jr. & Co. v. United States decision. From here, the Congress could surrender legislative powers to the Executive, as long as they provided a 'intelligible principle.'

Also, there is the expansive approach to the Interstate Commerce clause, from cases like Wickard V Filburn and Kelo v New London, letting the Federal government reach deeper into an individual's business.

Let us continue this discussion in chat.
â€“Â Drunk Cynic
yesterday — yesterday

MikiRaven 1005 · Answer 14 · 2018-10-07 09:04:30Z

As stated in other answers, there is not single answer, but many partial ones.
One of them is trust people give to courts. The supreme court cannot create its own cases, bug issuse get to the court only if someone brings the there.

Bringing a claim to the supreme court is lengthy and costly, people won't do it if they didn't believe in the court or if there was strong and uncontested political decision on those issues. Politicians can "overrule" many court decisions by passing a law (or even new constitution). Or they can limit powers of the court. Or they can increase the number of justices... There are many ways to limit its political role. But they usually don't. On the contrary - when the Supreme Court speaks, politicians stay silent and listen.

So, big part of the answer is - U.S. Supreme Court is so politicised, because people let it be so politicised and want it so politicised.

What do you mean by "people let it be politicised". Very few people have a say in appointing and confirming the justices. So, it's not really the people who let it happen, right? — yesterday
People don't appoint and confirm justices (though they elect those who do, so they have some say). But people let it be politicised because the go to the court with their political problems. As I said, the court cannot, by itself, decide issuse. Someone must bring it there and someone must respect its desicion. If people didn't litigate on those issues and if politicians changed the law immediately after a judgement they don't like, the court would be much weaker. — yesterday
I don't see how that requires politicising the court. Indeed, many other countries don't politicise their courts and it works well. — yesterday
I don't say it REQUIRES politicising the court. I say it CAUSES politicising the court. Many other countries don't politicise their courts, because people (and politicians!) don't go with their issues to courts and politicians enact law with less space for courts. — yesterday
In many other countries (including some named in the question) people can also take it to a higher court until it goes to the highest court. I think many of the statements in your answer apply to those countries as well. So the answer that the people let it be politicised in the US but not to the same extent elsewhere leads to the question why people in the US let it whereas the people in those other countries don't seem to. — yesterday

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Why is the debate on the composition of the U.S. Supreme Court so politicised?

7 Answers 7

Short, vague, and old constitution

Conservatives hate it when judges go liberal

The Supreme Court has ruled on partisan issues with substantial impact on the country

Presidents have historically used nominations to choose judges favorable to their political agenda

Lifetime appointments

Civil law

Parliamentary supremacy

US constitution

protected by Philippâ™¦ yesterday

7 Answers 7

7 Answers 7

Short, vague, and old constitution

Conservatives hate it when judges go liberal

Short, vague, and old constitution

Conservatives hate it when judges go liberal

Short, vague, and old constitution

Conservatives hate it when judges go liberal

Short, vague, and old constitution

Conservatives hate it when judges go liberal

The Supreme Court has ruled on partisan issues with substantial impact on the country

Presidents have historically used nominations to choose judges favorable to their political agenda

Lifetime appointments

The Supreme Court has ruled on partisan issues with substantial impact on the country

Presidents have historically used nominations to choose judges favorable to their political agenda

Lifetime appointments

The Supreme Court has ruled on partisan issues with substantial impact on the country

Presidents have historically used nominations to choose judges favorable to their political agenda

Lifetime appointments

The Supreme Court has ruled on partisan issues with substantial impact on the country

Presidents have historically used nominations to choose judges favorable to their political agenda

Lifetime appointments

Civil law

Parliamentary supremacy

US constitution

Civil law

Parliamentary supremacy

US constitution

Civil law

Parliamentary supremacy

US constitution

Civil law

Parliamentary supremacy

US constitution

protected by Philippâ™¦ yesterday

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