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.  

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

[2] Ibid.

[3] Ibid.

Americans Can Sue Saudi Arabia over 9/11 and the Saudis Accept Lower Oil Production by OPEC: The Unraveling of a Deal?

On Wednesday, September 28, 2016, the U.S. Congress voted overwhelmingly—97-1 in the Senate and 348-77 in the House of Representatives—to override President Obama’s veto of a bill that allows the families of the September 11, 2001 World Trade Center bombings.[1] As a result, American courts can seize Saudi assets to pay for any judgment obtained by the families. Saudi officials in turn warned that their government might need to sell off hundreds of billions of dollars in holdings in the United States to avoid such an outcome. In another place in the world, Saudi officials were dropping their resistance to OPEC—an oil cartel—cutting production. Even though positive correlation does not in itself indicate causation, the timing may point to the impact of political calculations by Obama. That is to say, the timing may suggest a political deal gone bad.

Generally speaking, low gas prices and the related fall in the prices of foodstuffs favor the reelection of the party in power. Such economics play well with the American electorate voting for U.S. President. So President Obama, being in favor of Hillary Clinton, another Democrat-centrist, may have told Saudi officials that he would make sure a law allowing U.S. citizens to sue the Saudi Government over 9/11 would not be enacted, and in return the Saudis would continue to pressure OPEC to keep oil supply at the high level. Keeping such a deal from falling apart may have been why the White House proffered “fierce objections” to Congress overriding the president’s veto. To be sure, the override could pose a danger in that the Saudis could sue the U.S. Government on matters related to the U.S. military presence in the kingdom, but would Obama have been so “fierce” just for that possibility when a more pressing concern was likely keeping the White House in Democratic hands to insure his legacy (e.g., Obamacare).

Sure enough, OPEC’s 14 oil-producing nations, including Saudi Arabia, agreed on Wednesday, September 28, 2016, “to modestly cut their collective oil output later this year in an effort to bolster sagging prices.”[2] Although the cuts probably would not take place until after the U.S. presidential election in early November, the “decision sent global oil prices soaring by more than 5 percent.”[3] The question for Obama might have been: How long will it take for the increase to be reflected “at the pump” and in grocery stores? Perhaps he might have considered opening up more of the U.S.’s strategic reserves, though he might have felt that the override itself was close enough to the election that any price-implications by election day would not diminish Clinton’s chances.

A major difference separates the motive of not wanting to open the U.S. Government up to being sued in Saudi Arabia on the one hand and not wanting Clinton to lose the upcoming election; whereas the former is acting in the interest of these United States, the latter desire is partisan and personal. Making a deal with a foreign government for the latter motive would essentially put the United States second, as well as having the sordid taste of trying to manipulate the American People—the popular sovereign to which the government and its elected and appointed officials are agents rather than principals.

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1. Jennifer Steinhauer, Mark Mazzetti, and Julie H. Davis, ,“Congress Allows Saudis to Be Sued Over 9/11 Attacks,“ The New York Times, September 29, 2016.

2. Clifford Krauss and Stanley Reed, “Oil Prices Rise 5% on OPEC’s Tentative Deal to Cut Production,” The New York Times, September 29, 2016.

3. Ibid.