‘Nine politicians sitting on a bench.’ Critically evaluate this description of the US Supreme Court.
The decisions of the US Supreme Court can have a significant impact on US society. In fact the Supreme Court only hears cases that it believes are of major constitutional significance. The impact that these decisions have on US society is almost always a divisive issue, and this has led to many people claiming that Supreme Court justices are as much politicians as they are judges. This essay will critically evaluate the view that the US Supreme Court is made up on nine politicians, rather than 9 judges.
One reason for the view that Supreme Court Justices are ‘politicians’ is due to the appointment process, which has been accused of being politicised. This is because nominees for the Supreme Court are often nominated and questioned based more on politics than on their skills as a judge, which is in contrast to the UK where Supreme Court judges must have been judges in the Court of Appeal, and are selected solely on merit, rather than politics. In the US, the president nominates a candidate, which is more often than not based on politics rather than on merit, and then the Senate votes on whether to approve the nominee. The president always denies that any political consideration in their nomination, however it usually seems to be an underlying factor. Presidents want to choose a justice who has the same political and judicial philosophy as them.
A Democrat president who supports gun control and pro-choice is not going to appoint a justice who has a conservative approach, and supports lack of gun control and is pro-life. When Bush nominated David Souter in 1990, he was asked by the press whether he had asked Souter his views on abortion (Bush was against abortion). In reply, Bush said ‘It would have been inappropriate to ask him his views on specific issues’. He was thought to be a strict constructionist, but proved to be one of the most liberal members of the court.
This could be perceived in one of two ways. The first is that Bush may have elected Souter based solely on his ability as a judge, which is suggested by the fact that he made decisions that Bush may not have made, or alternatively, Bush chose Souter as Bush thought Souter would reflect the president’s own judicial and political philosophy, as he was expected to be a strict constructionist, but this backfired. Bill Clinton nominated 2 justices during his presidency, both of whom reflected his own political philosophy, in that their stances in Supreme Court decisions are consistently liberal. This is evidence that presidents appoint justices based on their judicial philosophy, as well as evidence which supports the statement that the justices are politicians, as they are chosen on their politics as much as their judicial expertise.