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Question

Why is 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'm not convinced the powers are comparable at all in most cases. Many are far more powerful, if for no other reason than that cases must satisfy far fewer requirements to arrive before them. And the UK's top court seems significantly less powerful from what I understand (and isn't it tied to the house of lords or something, which is notably lacking in being elected?). — 2 hours ago
@zibadawatimmy, there was a major overhaul a decade ago which separated the newly created Supreme Court of the UK from the House of Lords. On the issue of being less powerful than the USSC, you are correct: it cannot overturn primary legislation. — 1 hour ago
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. — 1 hour ago
@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. — 1 hour ago

score 3 · Answer 1 · 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.

score 0 · Answer 2 · 2018-10-06 21:16:56Z

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.

Drunk Cynic 7,18532549 · Answer 3 · 2018-10-06 21:40:24Z

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 General Welfare Clause, allowing for a vast expansion in spending by the Federal government, was created 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.

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.

Brythan 62.1k7123215 · Answer 4 · 2018-10-06 22:10:59Z

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.

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? — 4 mins ago

score 3 · Answer 5 · 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.

score 0 · Answer 6 · 2018-10-06 21:16:56Z

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.

Drunk Cynic 7,18532549 · Answer 7 · 2018-10-06 21:40:24Z

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 General Welfare Clause, allowing for a vast expansion in spending by the Federal government, was created 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.

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.

Brythan 62.1k7123215 · Answer 8 · 2018-10-06 22:10:59Z

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.

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? — 4 mins ago

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Why is the U.S. Supreme Court so politicised?

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

Lifetime appointments

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Parliamentary supremacy

US constitution

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

Lifetime appointments

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

Lifetime appointments

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

Lifetime appointments

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

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

Lifetime appointments

Civil law

Parliamentary supremacy

US constitution

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

Lifetime appointments

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

Lifetime appointments

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

Lifetime appointments

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

Lifetime appointments

Civil law

Parliamentary supremacy

US constitution

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Parliamentary supremacy

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Parliamentary supremacy

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Parliamentary supremacy

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