Thursday, October 6, 2016

Political Ideology in the U.S. Supreme Court: Undercutting the Court’s Legitimacy

As the U.S. Supreme Court began its 2016 term with eight justices, the Court stood “at the threshold of an ideological transformation unmatched in nearly a half century.”[1] Not since 1968, when Richard Nixon was elected U.S. President, had such an opportunity presented itself. Nixon’s four nominations ended the liberal majority begun by Franklin Roosevelt’s eight.[2] The conservative majority begun with Nixon’s nominations was up for grabs with the 2016 presidential election. I submit that the legitimacy of the ideological dimension itself dwarfs the matter of which ideology is dominant on the Court.

Even if a victory by Hillary Clinton would “shake the foundations of the court’s marble palace, leading to [the] first liberal majority since the Vietnam [War] era,”[3] it is even more astounding that the result of a U.S. presidential election would have such an impact on the highest court in the United States. In other words, the importance of political ideology in the judicial deliberations and decisions is itself worthy of recognition. I submit that there being politically conservative and progressive justices on the bench gradually wears down the Court’s legitimacy as an institution premised on specialized legal education and training.

Politically ideological opinion is something that any person can have, so if it is salient in judicial opinions at the highest level, the question arises from a democratic standpoint: Why shouldn’t the people or their elected representatives decide the questions? Why should the political ideologies of nine people have such extraordinary influence? The democracy deficit here stems from the fact that the people or their elected representatives are not able to impart their political ideologies directly. Even if the Court’s nine justices were elected, the question would still be why should the political ideologies of just nine people have such influence relative to the political ideologies of the electorate or at least its representatives?

In short, if a political election can have a judicial impact as large as in 1968 and 2016, then it follows that the Court is at least in part political rather than fully judicial [i.e., of jurisprudence]. Just because justices can make rational arguments in legalese does not legitimate the power of the associated political ideologies. That is to say, the political ideologies of U.S. Supreme Court justices are not better or more legitimate than are the ideologies of the popular sovereign (i.e., the People) simply because the justices are skilled in oral and written legal argumentation.

The U.S. Supreme Court could be limited to oral arguments and the writing of majority and minority opinions, while the deciding of the cases is done by popular referendum or Congressional majority (or supermajority). In other words, the high Court could be willowed down to performing its unique skills, while the People or their elected representatives would function like a jury—hence being able to use the Court’s oral and written arguments in making a ruling. The Court’s justices would then be charged with writing the majority and minority opinions. Hence, the justices would serve the People, rather than imposing a few ideologies. Put another way, the Court’s legal oral and writing skills could be used to justify the ideologically-tinged decisions made by the People or at least their elected representatives.  

[1] Richard Wolf, “Court at Brink of Transformation,” USA Today, September 30 – October 2, 2016.
[2] Ibid.
[3] Ibid.