A few days ago, the Supreme Court — the highest judicial authority in the US — was caught up in controversy when it was accused of politicising its decisions in favour of conservatives, representing a dangerous challenge that threatens to undermine its legitimacy.
For the first time in its history, according to a Gallup poll, American citizens’ confidence in the court’s decisions has declined significantly, securing only 25% of the confidence of the American public. This decline in Americans’ faith in court decisions is rapid, falling by 20 percentage points in two years.
The court routinely had the faith of two-thirds of Americans in Gallup polls. However, this erosion of confidence is surely due to decisions issued by conservative justices in the past period on hot issues such as abortion, climate change regulations, and gun laws. These decisions seemed to be directed by the Republican Party rather than decisions by the highest court in the country.
The issue of politicising Supreme Court decisions is not new at all. This issue used to resurface from time to time in the past decades. But it has become an issue of great momentum since the era of President George W. Bush JR., and specifically since his appointment of John Roberts as head of the Supreme Court in 2005, of which he is still president today.
At the time, the main reason behind the rejection of John Roberts as Chief Justice by many politicians was his professional history. Many asserted at the time that he was heavily aligned with the ideologies of the Republican Party. Thus, the objection was centred on the professional history and ideological beliefs of this judge nominated to head the nation’s highest court, which should enjoy absolute impartiality.
Many politicians asserted that Roberts’ professional history showed his lack of belief in the equal protection of all Americans, especially the most vulnerable and marginalised classes in society. This is because Roberts objected to laws that called for the protection of the rights of girls and young women to enjoy the same benefits as men and young people in sports. Also, his view was that politicians, not women themselves, should control women’s reproductive health care. He also opposed the implementation of various solutions to the social injustices in the US that have been prevalent since the era of slavery that continue to this day.
After the appointment of Roberts, the issue of politicising the decisions of the Supreme Court re-emerged strongly, specifically in 2007, just two years after his appointment. Many then saw their alleged fears come true after Roberts succeeded in putting together a strong bloc of four other conservative justices to vote on every major case, dividing the court along ideological lines.
Roberts also showed indifference to the principle of respect for past judgments, or in judicial terms “Respect for Precedent”. This is where the Supreme Court follows a doctrine known as ‘stare decisis’ — a Latin term for “let it stand.”
This doctrine means that the court should generally build on its previous rulings rather than overturn them. However, in several recent cases, Roberts and other conservative judges such as Samuel Allitowa have treated this principle and the Court’s earlier rulings with disrespect.
One of the most famous of these rulings that overturned what came before is of course the last ruling on abortion rights that sparked a revolution in society, fuelling feelings of polarisation.
More importantly, overturning previous rulings in favour of conservatives has caused the court to lose the ideological balance that it used to enjoy throughout its history. This is because, in the past, the Democratic and Republican parties used to maintain the “balance of the court,” taking into account the mood of the Americans, and being keen on the “impartiality” of its president as much as possible.
To this day, many observers claim that John Roberts could not break free from his ideological convictions. The proof is that just a day before the vote to abolish abortion, he voted with the court’s dominant conservative majority to repeal a law restricting the carrying of guns in New York. A week before that, he voted, along with the conservatives, on a resolution supporting state funding of private schools to include religious education, which contravenes the principle of separation between religion and state.
All of this has made many American citizens and the media believe that conservative justices appointed by Republican presidents are embracing a systematic project to reformulate American constitutional law from a conservative point of view. What strengthens this belief is that the court has chosen a set of very controversial ideological issues to decide on in the coming period, such as the issue of college admissions according to race, the issue of voting rights, and the election law.
In addition to the biased decisions of the Supreme Court of the recent period, how the Supreme Court of the US is organised makes it easy and even natural to be politicised. It may surprise you that the US is the only democracy that grants members of the Supreme Court the right to serve for life. Most Western countries have set periods or mandatory retirement ages: 68 in Germany, 75 in Britain, and 75 in Canada.
The American selection system is also unusually political. This is where the constitution gives general power to the President of the US with the advice of a Senate to appoint a Chief Justice who serves for life and cannot be removed by the President. In contrast, in many European countries, there are expert committees that play a big role in screening candidates.
The system of voting and adjudication of cases also greatly encourages the politicisation of court decisions. This is where cases are judged based on a majority vote rather than unanimity, allowing judges’ ideological beliefs to be imposed on court decisions. In contrast, some European Supreme Courts are required to rule by unanimity rather than by majority vote. Judges also often do their best not to sow political divisions. In Italy, Belgium, and France, for example, Supreme Court judges do not publish dissent to preserve the court’s impartial image.
The issue of the politicisation of Supreme Court decisions and the low public confidence is one of the most serious issues that threaten the American democratic system. The public’s confidence in the court and its credibility with the people is the real force that gives the court its legitimacy. Without this confidence, the court’s decisions become useless.
This is because the Supreme Court does not have the authority to enforce its decisions. The only thing the court has the power to do is issued its decisions and publish them on its website. So, all the Supreme Court has to do is to maintain public acceptance of its rulings as legitimate. This is because once the court loses this popularity, it will pose a fundamental threat to society.
Now, in this very critical stage of the history of the US, the Supreme Court is the only American institution able to heal the rift and end the deeply polarised state of society. But this will never happen if the chief justice and the judges do not abandon their ideological prejudices.
* Marwa Al-Shinawy is an Assistant Professor at the International American University for Specialised Studies (IAUS)
