AN INDEPENDENT JUDICIARY: IS SCOTUS BECOMING TOO POLITICIZED?

The Supreme Court of the United States is a unique construct of the American democracy.[1] No other government in the world has a court that has exercised as much authority and influence for as long as the Supreme Court.[2]

            The secret behind the Supreme Court’s success as an institution is perhaps the perceived independence of its justices from the political arena that engulfs the other two branches of U.S. government.[3] The independent nature of the Court was carefully designed by the Founding Fathers.[4] James Madison argued that questions regarding constitutional interpretation “must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.”[5] Alexander Hamilton reinforced this argument in “The Federalist” Paper No. 78, when he stated “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”[6]

The Constitution prescribes safeguards to prevent the judiciary from becoming too influenced by politics.[7] Article III, Section I of the U.S. Constitution allows Supreme Court justices to hold lifetime appointments, so long as they maintain “good behaviour.”[8] While interpretation of the Good Behavior Clause has been a subject of debate, it generally means that justices cannot be removed from office unless serious ethical misconduct or constitutional violations permit impeachment.[9] To date, only one supreme court justice has ever been impeached and no justice has ever been removed from office.[10]

The second safeguard prescribed by our Constitution is also contained in Article III, Section I.[11] This clause prohibits the other two branches of government from decreasing the salaries of the justices.[12] By doing so, the legislative and executive branches of government cannot “gang up” on the Court, or pressure them into interpreting constitutional questions with political bias.[13]

With these safeguards in place, one cannot help but wonder how Supreme Court judicial appointments have become so tumultuous in recent years. President Trump’s appointees underwent months of personal and politically-motivated scrutiny before being confirmed by the Senate Judiciary Committee.[14] It is anticipated that President Biden’s recent nominee will face the same type of scrutiny by the Committee.[15] Previous presidents, like George H.W. Bush and President Clinton, also had their nominees heavily scrutinized by opposing political parties sitting on the Committee.[16]

Much of the criticism and scrutiny faced by Supreme Court nominees is not, however, related to the nominee’s track record as a federal judge.[17] Many of the questions pelted at the nominees don’t even revolve around his or her qualifications as a potential Supreme Court justice.[18] Confirmation hearings are now used to launch personal attacks on the nominees, tarnishing their otherwise upstanding judicial reputations in an attempt to validate media-led scandals.[19] Why does the Committee put so much emphasis on the political and personal preferences of a Supreme Court nominee, when the nominee is charged with applying the law objectively and without political bias?

The Supreme Court appointment and nomination process has always been political.[20] The partisan nature of nominating a new justice and “packing the court” has existed since the beginning of the republic.[21] Some political scholars even argue that the nomination process was even more politicized before the modern era.[22] For example, in 1800 to prevent incoming President Thomas Jefferson from making an appointment, Congress reduced the number of seats on the Court from six to five.[23] Once a new Congress was elected, it increased the number of seats to seven.[24] Controversial and last-minute “midnight appointments” plagued the beginning of Thomas Jefferson’s presidency when outgoing President John Adams threw one last Hail Mary attempt to retain control of the Supreme Court.[25] These appointments led to the landmark case Marbury v. Madison, in which the doctrine of judicial review was established.[26] Later, the number of seats was increased to nine to allow Andrew Jackson two Supreme Court appointments.[27] Again, in 1937, President Franklin Roosevelt attempted to expand and “pack” the supreme court, believing that with enough Supreme Court support, his New Deal legislation would be constitutionally upheld.[28]

Recent Court opinions have shown that, despite a justice’s political ideology, the application of law ultimately guides the Court’s decision.[29] In Fulton v. Philadelphia, the Court unanimously determined that the city of Philadelphia violated a Catholic foster-care agency’s First Amendment right when it required the agency to work with same-sex couples.[30] Liberal-leaning justices were not expected to join in the majority, but did so based on the particular facts of the case.[31] In another 2021 case attempting to strike down the Affordable Care Act, justices Barrett, Kavanaugh, and perhaps most conservative-leaning Thomas, all joined the majority upholding the constitutionality of Obamacare.[32]

The bottom line? Our country has a long history of exerting political influence over our allegedly independent Supreme Court through the appointment and nomination process.[33] While scandalous exploitations may be a more recent development to the confirmation process, attempts to influence the political leaning of the Supreme Court have nevertheless always existed, and will continue for as long as politics remain prominent in our legislative and executive branches.[34] This does not, however, change the ultimate authority and duty of the Justices to maintain allegiance to the U.S. Constitution alone. So long as the constitutional safeguards remain in place to protect Supreme Court justices from the crippling political influence prevalent elsewhere in our federal government, the integrity and independence of our judiciary will remain intact.[35]

[1] Supreme Court of the United States, The Court and Constitutional Interpretation (last visited March 11, 2022),  https://www.supremecourt.gov/about/constitutional.aspx.

[2] Id.

[3] See id.

[4] Id.

[5] Id.

[6] John J. Patrick, Judicial Independence, Understanding Democracy: A Hip Pocket Guide, Annenberg Classroom, https://www.annenbergclassroom.org/resource/understanding-democracy-hip-pocket-guide/judicial-independence/ (last visited March 12, 2022).

[7] Id.

[8] See U.S. Const. art. III, §1.

[9] Good Behavior Clause: Doctrine and Practice, Cornell Law School, https://www.law.cornell.edu/constitution-conan/article-3/section-1/good-behavior-clause-doctrine-and-practice (last visited March 12, 2022).

[10] Elizabeth Nix, Has a U.S. Supreme Court justice ever been impeached?, History.com (Oct. 28, 2018), https://www.history.com/news/has-a-u-s-supreme-court-justice-ever-been-impeached.

[11] Patrick, supra note 6.

[12] U.S. Const. art. III, §1.

[13] See Patrick, supra note 6.

[14] See Jacqueline Baylon & Brittany Stephanis, Amy Coney Barrett’s nomination hearing is underway. Here are some of the most contentious Supreme Court nominations in US history, Business Insider (Oct. 14, 2020, 10:02 AM), https://www.businessinsider.com/supreme-court-nominations-us-history-amy-coney-barrett-2020-10.

[15] See Carl Hulse, Democrats are aiming for confirmation by early April., The New York Times (Feb. 25, 2022), https://www.nytimes.com/2022/02/25/us/politics/democrats-biden-supreme-court-nominee.html.

[16] Ilya Shapiro, The Politics of Supreme Court Confirmations and Recommendations for Reform, CATO Institute (July 20, 2021), https://www.cato.org/testimony/perspectives-supreme-court-practitioners-views-confirmation-process#politics-has-always-been-part-of-the-process.

[17] See id.

[18] See id.

[19] See id.

[20] Id.

[21] Id.

[22] Shapiro, supra note 16.

[23] James D. Zirin, Beyond Court Packing: The Supreme Court Has Always Been Political, Time (November 2, 2020 5:13 PM EST), https://time.com/5906442/court-packing-election-history/.

[24] Id.

[25]Midnight Appointments in Judiciary Politics, Center for the Study of the American Constitution (October 23, 2020), https://csac.history.wisc.edu/2020/10/23/midnight-appointments-in-judiciary-politics/.

[26] Id.

[27] Zirin, supra note 23.

[28] Id.

[29] See generally Jeannie Suk Gersen, The Supreme Court’s Surprising Term, The New Yorker (June 27, 2021), https://www.newyorker.com/magazine/2021/07/05/the-supreme-courts-surprising-term.

[30] Id.

[31] Id.

[32] Id.

[33] See Shapiro, supra note 16.

[34] See id.

[35] See Patrick, supra note 6.