Introduction
For the first time in history, the United States Supreme Court is perfectly divided on party lines, with all Republican-appointed Justices being conservative and all Democratic-appointed Justices being liberal.[i] Evidence suggests that Justices primarily vote on the basis of ideology[ii] and rarely vote against the ideology of the President who appointed them.[iii] This creates several problems for an institution tasked with dispensing justice without fear or favour, with its decisions being bereft of any political influence. The present state of affairs is a result of recent partisan attempts to obtain control of the Court. This account examines the politicisation of the Court in the context of three issues. Delving first into the legitimacy of the apex court, exploring why this is important and how it has come under threat. Moving on to analyse the implications of the Court’s politicisation for protection of certain constitutional rights; specifically scrutinising the recent developments in relation to the right to an abortion. Finally, the essay reviews the proposed court reforms for remedying this politicisation, and questions whether these would actually restore, or further undermine, the Court’s legitimacy, and along with it, the rule of law.
The Court and the Contemporary Threat
The US Supreme Court holds a significant position in the US constitutional system, acting as a check on the powers of the executive and the legislature. Owing to the decision in Marbury v. Madison,[iv] the Court holds the power to review laws and government actions, to evaluate their legality in light of the US constitution. According to one school of constitutional theory, the Court has the responsibility to exercise this judicial review power in a counter-majoritarian manner, that is, in order to limit the infirmities of the majority rule — the ‘tyranny of the majority’.[v]
It is indeed the actualisation of this view and the assumption of this responsibility by the Court that led to a number of landmark decisions relating to the protection and extension of fundamental constitutional rights. From holding racial segregation to be unconstitutional,[vi] to ruling that the right to an abortion is a fundamental right of women,[vii] and more recently, legalising same-sex marriage,[viii] the Court has furthered the cause of various socio-political movements over the past century, particularly those that concern minority rights.
On matters relating to fundamental rights, the language of the constitution is often broad and general, which leaves the judges with a significant amount of discretion. In such cases, each judge’s interpretation and decision is determined by a myriad of factors, including their ‘background, experience and personal views about law’s objectives’.[ix] Therefore, the rights and liberties of the citizens are, to a certain degree, dependant on the individual ideologies and views of a handful of unelected people.[x] For instance a judge who adheres to originalism or judicial restraint — a school of constitutional interpretation — would give the constitution a textual meaning, which often yields a conservative outcome. Whereas, judges who are proponents of living constitutionalism or judicial activism would adopt a view that accounts for the changing political values and social views, thereby resulting in a more liberal interpretation of the law.
Although ideological and political views of judges should not have an overbearing impact on their judgment, the recent evidence suggests that this is not the case in practice.[xi] Thus, the composition of the court bears instrumental significance for the eventual outcome of a case, as a litigant merely needs to appeal to the political preferences of five out of nine justices. Therefore, it is considered essential to have a more balanced and diverse Court, which caters to different prevailing views in the society. In recent years, however, political parties in the US have made a sustained effort to take control of the Supreme Court by influencing the judicial appointments process.[xii]
The most recent — and the most politically contentious — of these attempts started in 2016, when the Republican Party blocked the hearing of President Obama’s nominee for a court vacancy, on the premise that it was an election year and the winner of the Presidential election should be the one to nominate a person; paving way for the vacancy to be eventually filled by a Republican nominee. To make matters worse, the Republicans conveniently departed from this rationale when they rushed to confirm President Trump’s nominee a week before the 2020 presidential election.[xiii] This ‘constitutional hardball’[xiv] culminated in a six-three conservative majority in the Supreme Court.
The concatenation of these events has brought about three primary problems. Firstly, the politicisation of the Supreme Court endangers its legitimacy,[xv] i.e. the very foundation of the institution. Secondly, an overwhelming conservative majority could have severe consequences for the protection of certain constitutional rights that are generally perceived to be against conservative values, such as the right to abortion. Finally, this politicisation and successful Republican ‘takeover’ of the US Supreme Court has prompted discussions on court reform, in particular, the proposal for the controversial and divisive ‘court-packing’.
Legitimacy of the Supreme Court
Being an unelected institution, the Court derives authority solely from its legitimacy, that is, the perception of the Court as an impartial institution ‘guided by legal principle, not politics.’[xvi] The Court has no power to coerce or compel others to obey its decisions; thus, its legitimacy is rooted in the ability to persuade others that its rulings are fair and just. As Alexander Hamilton observed in The Federalist No. 78, the judiciary ‘has no influence over either the sword or the purse…neither force nor will, but merely judgment’.[xvii]
A Supreme Court that is viewed as partisan, and whose Justices are considered to rule on the basis of party affiliations, would lose its ability to convince others to follow its decisions. This would be particularly ominous in controversial cases where public opinion is divided. The segment of the society, as well as other public institutions, that disagree with the outcome of the case, may refuse to accept and follow these decisions. After all, people would only be willing to accept unpopular decisions so long as they believe that the Court used fair and impartial procedures in arriving at its decision.[xviii]
Hence, the Court’s legitimacy would be under grave threat, particularly in politically divisive and high-profile cases, if the Court continues to rule on partisan lines — as has been the case in recent years.[xix] Consider the recent example of the landmark case of Rucho v. Common Cause,[xx] which the Court decided along party lines.[xxi] All Republican-appointed Justices held partisan gerrymandering to be a non-justiciable political question, whilst all Democratic-appointed Justices dissented. The decision reflected the larger partisan divide between the Republicans and Democrats, as the Republican Party has historically restricted voting rights and has advocated against judicial interference in policymaking concerning electoral conduct.
Such polarisation of the US Supreme Court on party lines is unprecedented. For instance, in spite of the backlash and resistance that the Brown v. Board of Education[xxii] — Court’s decision relating to desegregation — faced from the pro-segregation Southern Democrats, the unanimous decision could not possibly have been declared a partisan one, as eight of the justices were Democratic-appointed. This was also the case with the decision in Roe v. Wade[xxiii] — decision holding that the US Constitution protected a woman’s right to an abortion — which was heavily criticised by conservative Republicans.[xxiv] However, the decision was authored by a Republican-appointed Justice and was concurred by four others. The Supreme Court’s decisions on such controversial and sensitive issues were largely accepted because of its reputation as an impartial institution. Once this reputation dwindles, so too will the Court’s ability to settle controversial matters.
Furthermore, as the Supreme Court is the final arbiter of the law, public confidence in the Court is inextricably linked to public confidence in the rule of law. If the majority of Americans perceive the Court as a partisan institution, this would entail serious ramifications for the very institution of law, and consequently, for democracy.[xxv] The loss of confidence in the rule of law will inevitably be a prelude to autocracy and despotism.
Despite the evident repercussions, the Court’s most recent decisions are divided on partisan lines as well. The decisions reflect a sharp conservative turn and the consequence of these on the protection of constitutional rights is apparent.
Constitutional Rights under Threat: Right to Abortion
The Texas Legislature recently adopted the Senate Bill 8 (SB8),[xxvi] which prohibits abortions after a fetal heartbeat can be detected, that is, at six weeks of pregnancy. Under the existing constitutional doctrine, SB8 is ostensibly unconstitutional; being in violation of Roe and Planned Parenthood v. Casey,[xxvii] the 1992 decision holding that states may not place an ‘undue burden’ on women’s right to abortion. Given that most women are unaware of the pregnancy at the six-week mark, SB8 certainly imposes an undue burden on the right to abortion.[xxviii]
The standard procedure for seeking an injunction against an alleged unconstitutional law is to sue the state officials charged with enforcing the law. The SB8, however, has a unique feature, insofar that it empowers citizens to bring a private civil action against anyone performing abortions. This feature of prohibiting state enforcement and deputising individuals with enforcement of the law was specifically included to circumvent any constitutional challenges.[xxix]
The strategy proved to be successful, as in early September this year, the US Supreme Court refused to block the bill.[xxx] The Court’s five-to-four order saw all but one Republican-appointed Justices reasoning that the Court’s power was limited to issuing an injunction against state officials tasked with enforcing laws. Although this does not overrule Roe and the matter of SB8’s constitutionality will certainly return to the Court, the order effectively deprives 85 to 90 per cent of women in Texas of abortion services.[xxxi] These women are strained to travel long distances to obtain an abortion in another state. This also includes survivors of sexual assault, as the Texas abortion ban makes no exception for rape or incest. One minor, raped by a family member, was forced to make an eight-hour journey to Oklahoma to get an abortion.[xxxii]
Indeed, the Court’s recently achieved conservative supermajority was the decisive factor in the refusal for grant of an injunction. The liberal Supreme Court Justices provided a strongly worded dissent, stating that ‘a majority of Justices have adopted to bury their heads in the sand’[xxxiii] by allowing the state of Texas to ‘evade federal judicial scrutiny’.[xxxiv] The dissent makes it manifest that the conservative majority’s decision was less on account of differing judicial views and interpretations, and more a result of differing ideologies. The conservative Justices believe that the Supreme Court erred in creating the right to abortion and are, therefore, unwilling to protect such a constitutional right.
The brunt of the conservative majority’s views is, however, faced by the American people, whose constitutional rights are imperilled. The US Supreme Court is set to hear a case in December this year, concerning the constitutionality of a Mississippi abortion ban,[xxxv] which marks the first time in nearly five decades that the Supreme Court will adjudge the constitutionality of an abortion ban since the landmark decision in Roe.
With the US Supreme Court being more conservative than at any point in recent history, the reproductive rights of women face a grave challenge. If the Court upholds the constitutionality of the Mississippi abortion ban, it would certainly be at the expense of either overturning of Roe or significant hollowing out of its core ruling. The disquiet is given credence to by the fact that if Roe is overturned, the ‘trigger laws’ in twelve US states would take effect, thereby automatically banning abortion in these states.[xxxvi] The most affected by the overturning of Roe would be the underprivileged and marginalised women, who do not have the means to travel out of state in order to obtain an abortion. Thus, the protection of the right to abortion rests heavily on the Court’s decision — and in particular, how the conservative Justices vote.
This concern for protection of constitutional rights of the people and the need for redressing the exceedingly conservative outlook of the Supreme Court have prompted discussions relating to court reforms, including jurisdictional stripping, introducing term limits, etc. But the discussion most notably focuses on the controversial reform of ‘court-packing’.
The Viability of Court-Packing Reform
Court-packing is a colloquial term for increasing the number of judges in the US Supreme Court to have a more balanced Court, that is, a Court neither too conservative, nor too liberal. The plan for expanding the Supreme Court was last introduced in 1937 by President Franklin D. Roosevelt after the Supreme Court struck down important features of the New Deal legislation.[xxxvii] The reform, however, was defeated after divisive political battles; the premise being that the reform potentially jeopardised the Court’s independence. Hence, the heated political contention associated with court-packing has led to similar proposals being viewed with scepticism.
The primary issue with court-packing is the risk of retaliation. If the Democrats are to expand the Court to obtain favourable decisions, the Republicans would do the same when they regain power.[xxxviii] This cycle of political retaliation would perpetuate until the apex court is nothing more than an unequivocally political and partisan body. Thus, expanding the Supreme Court runs the risk of increasing the political influence over the Court and further eroding the public confidence in the institution. Hence, the Court finds itself amidst a quandary, where its public approval continues to plummet due to the existing politicisation; on the other hand, any reform for rectifying this situation is in danger of advancing the politicisation and damaging the Court’s institutional legitimacy. [xxxix]
One argument is that the Court’s current predicament is of its own making. In a democracy, the authority and power of an institution — particularly an unelected institution — should only be accepted and considered legitimate if it furthers the principles of democratic governance. The Supreme Court, however, in recent years has passed a number of judgments that undermine these principles, including restricting rights of minority voters,[xl] allowing for increased lobbying through campaign financing,[xli] etc. Moreover, the Court has paved the way for threats to its legitimacy — and at large, to the rule of law — by allowing itself to become polarised along party lines; as is reflected in its judgments.
Therefore, it is only reasonable to conclude that the simplest of reforms would come from within the Court. The significance that the Supreme Court’s impartial reputation holds for the advancement of rule of law needs to be realised by all stakeholders; chiefly by the Justices themselves, who may need to moderate their views to preserve the sanctity of the Supreme Court. Such a course of action would not be unprecedented, as past Supreme Court Justices did rule against their individual ideologies if the Court’s legitimacy benefitted from doing so. For instance, in the wake of Roosevelt’s court-packing plan, Justice Owen Roberts temporarily shifted to the left and switched from ruling against New Deal legislation to upholding it.[xlii] The political circumstances and the otherwise inexplicable change in Justice Roberts’ views have led academics to conclude that this switch was in order to discourage any reforms that could potentially impair the Court’s independence.[xliii]
Notwithstanding the concerns for the legal and moral legitimacy of decisions based on political considerations, moderation of individual views and self-regulation by the Justices does appear to resolve the larger problem, that is, the legitimacy of the Court itself.
Conclusion
The foregoing discussion identifies that the Supreme Court’s legitimacy is endangered by the controversy over recent nominations, the apprehension relating to the overturning of certain long-standing precedents, and politically divisive proposals for court reform. The solution seemingly lies in the problem. A precedent-driven and a minimalist or pragmatic approach to constitutional interpretation would aid in restoring the Court’s authority and legitimacy to a large degree. The restoration and reigniting of public faith in the Court is imperative, as this is closely associated with the public faith in the very notion of law and the idea of justice, which is the foundation of any progressive and enlightened society.
[i] N Devins and L Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press 2019)
[ii] JA Segal and HJ Spaeth, The Supreme Court and the Attitudinal Model (Cambridge University Press 1993). See also L Epstein and J Knight, The Choices Justices Make (CQ Press 1998).
[iii] L Epstein & E Posner, ‘If the Supreme Court Is Nakedly Political, Can It Be Just?’ New York Times (9 July 2018) <https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html> accessed 2 November 2021.
[iv] 5 US (1 Cranch) 137 (1803).
[v] JS Mill, On Liberty and Other Essays (Oxford University Press 1998) 8.
[vi] Brown v. Board of Education, 347 US 483 (1954).
[vii] Roe v. Wade, 410 US 113 (1973).
[viii] Obergefell v. Hodges, 576 US 644 (2015).
[ix] S Breyer, The Authority of the Court and the Peril of Politics (Harvard University Press 2021) 56.
[x] B Friedman, ‘The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five’ (2002) 112 Yale Law Journal 153.
[xi] See supra note 2. See also RS Sheehan, W Mishler, and DR Songer, ‘Ideology, Status, and the Differential Success of Direct Parties Before The Supreme Court’ (1992) 86(2) American Political Science Review 464
[xii] C Hulse, Confirmation Bias: Inside Washington’s War Over the Supreme Court, from Scalia’s Death to Justice Kavanaugh (HarperCollins 2020).
[xiii] AW Herndon and M Astor, ‘Ruth Bader Ginsburg’s Death Revives Talk of Court Packing’ New York Times (22 October 2020) <https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html> accessed 2 November 2021.
[xiv] See M Tushnet, ‘Constitutional Hardball’ (2004) 37(2) The John Marshall Law Review 523, 523 (defining constitutional hardball as ‘political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.’)
[xv] TL Grove, ‘The Supreme Court’s Legitimacy Dilemma’ (2019) 132 Harvard Law Review 2240.
[xvi] Breyer, supra note 9, 100.
[xvii] A Hamilton, The Federalist No. 78 <https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470> accessed 2 November 2021.
[xviii] TR Tyler and K Rasinski, ‘Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular US Supreme Court Decisions: A Reply to Gibson’ (1991) 25(3) Law and Society Review 621.
[xix] D Epps and G Sitaraman, ‘How to Save the Supreme Court’ (2019) 129(1) Yale Law Journal 148.
[xx] 139 S. Ct. 2484 (2019)
[xxi] EJ Bondurant, ‘Rucho v. Common Cause—A Critique’ (2020) 70 Emory Law Journal 1049.
[xxii] 347 US 483 (1954).
[xxiii] 410 US 113 (1973).
[xxiv] Epps and Sitaraman, supra note 19, 154.
[xxv] Ibid, 151.
[xxvi] SB8, 87th Legislature, Special Session (Texas 2021).
[xxvii] 505 US 833 (1992)
[xxviii] M Tushnet, ‘Has the U.S. Supreme Court Effectively Overruled Roe v. Wade?’ (Verfassungblog, 3 September 2021) <https://verfassungsblog.de/has-the-u-s-supreme-court-effectively-overruled-roe-v-wade/> accessed 2 November 2021.
[xxix] D Suresh, ‘Wade’s Way No More? The Future of Reproductive Rights in Light of Texas Senate Bill 8’s Constitutionality’ (2021) 77 Saint Louis University Law Journal Online <https://scholarship.law.slu.edu/lawjournalonline/77> accessed 2 November 2021.
[xxx] Whole Woman’s Health v. Jackson, 594 US ____ (2021).
[xxxi] K White and others, ‘Texas Senate Bill 8: Medical and Legal Implications’ (2021) Research Brief, Texas Policy Evaluation Project, University of Texas at Austin.
[xxxii] United States v. Texas, United States’ Emergency Motion for a Temporary Restraining Order or Preliminary Injunction, (WD Texas 14 September 2021) <https://s3.documentcloud.org/documents/21062495/9-14-21-us-motion-for-tro-pi-texas-sb8.pdf> accessed 2 November 2021.
[xxxiii] Supra note 30, 7.
[xxxiv] Ibid, 10.
[xxxv] Dobbs v. Jackson Women’s Health Organization.
[xxxvi] D Santamarina, ‘What abortion policy in the US would look like if Roe v. Wade fell’ The Washington Post (2 September 2021) <https://www.washingtonpost.com/politics/2021/06/11/abortion-rights-roe-v-wade/> accessed 2 November 2021.
[xxxvii] J Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (WW Norton & Co. 2010)
[xxxviii] M Tushnet, ‘Court-Packing On the Table in the United States?’ (Verfassungblog, 3 April 2019) <https://verfassungsblog.de/court-packing-on-the-table-in-the-united-states/> accessed 2 November 2021.
[xxxix] J Braver, ‘Court-Packing: An American Tradition’ (2020) 61(8) Boston College Law Review 2747.
[xl] Shelby County v. Holder, 570 US 529 (2013).
[xli] Citizens United v. Federal Election Commission, 558 US 310 (2010).
[xlii] Shesol, supra note 37, 415
[xliii] Ibid.
Bibliography
Articles and Journals
Bondurant EJ, ‘Rucho v. Common Cause—A Critique’ (2020) 70 Emory Law Journal 1049
Braver J, ‘Court-Packing: An American Tradition’ (2020) 61(8) Boston College Law Review 2747
Epps D and Sitaraman G, ‘How to Save the Supreme Court’ (2019) 129(1) Yale Law Journal 148
Epstein L & Posner E, ‘If the Supreme Court Is Nakedly Political, Can It Be Just?’ New York Times (9 July 2018) <https://www.nytimes.com/2018/07/09/opinion/supreme-court-nominee-trump.html> accessed 2 November 2021
Friedman B, ‘The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five’ (2002) 112 Yale Law Journal 153
Grove TL, ‘The Supreme Court’s Legitimacy Dilemma’ (2019) 132 Harvard Law Review 2240
Hamilton A, The Federalist No. 78 <https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470> accessed 2 November 2021
Herndon AW and Astor M, ‘Ruth Bader Ginsburg’s Death Revives Talk of Court Packing’ New York Times (22 October 2020) <https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html> accessed 2 November 2021
Santamarina D, ‘What abortion policy in the US would look like if Roe v. Wade fell’ The Washington Post (2 September 2021) <https://www.washingtonpost.com/politics/2021/06/11/abortion-rights-roe-v-wade/> accessed 2 November 2021
Sheehan RS, Mishler W, Songer DR, ‘Ideology, Status, and the Differential Success of Direct Parties Before The Supreme Court’ (1992) 86(2) American Political Science Review 464
Suresh D, ‘Wade’s Way No More? The Future of Reproductive Rights in Light of Texas Senate Bill 8’s Constitutionality’ (2021) 77 Saint Louis University Law Journal Online <https://scholarship.law.slu.edu/lawjournalonline/77> accessed 2 November 2021
Tushnet M, ‘Constitutional Hardball’ (2004) 37(2) The John Marshall Law Review 523
Tushnet M, ‘Court-Packing On the Table in the United States?’ (Verfassungblog, 3 April 2019) <https://verfassungsblog.de/court-packing-on-the-table-in-the-united-states/> accessed 2 November 2021
Tushnet M, ‘Has the U.S. Supreme Court Effectively Overruled Roe v. Wade?’ (Verfassungblog, 3 September 2021) <https://verfassungsblog.de/has-the-u-s-supreme-court-effectively-overruled-roe-v-wade/> accessed 2 November 2021.
Tyler TR and Rasinski K, ‘Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular US Supreme Court Decisions: A Reply to Gibson’ (1991) 25(3) Law and Society Review 621
White K and others, ‘Texas Senate Bill 8: Medical and Legal Implications’ (2021) Research Brief, Texas Policy Evaluation Project, University of Texas at Austin
Books
Breyer S, The Authority of the Court and the Peril of Politics (Harvard University Press 2021)
Devins N and Baum L, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press 2019)
Epstein L and Knight J, The Choices Justices Make (CQ Press 1998)
Hulse C, Confirmation Bias: Inside Washington’s War Over the Supreme Court, from Scalia’s Death to Justice Kavanaugh (HarperCollins 2020)
Mill JS, On Liberty and Other Essays (Oxford University Press 1998)
Segal JA and Spaeth HJ, The Supreme Court and the Attitudinal Model (Cambridge University Press 1993)
Shesol J, Supreme Power: Franklin Roosevelt vs. The Supreme Court (WW Norton & Co. 2010)
Statute
SB8, 87th Legislature, Special Session (Texas 2021)
Table of Cases
Brown v. Board of Education, 347 US 483 (1954)
Citizens United v. Federal Election Commission, 558 US 310 (2010)
Dobbs v. Jackson Women’s Health Organization
Marbury v. Madison, 5 US (1 Cranch) 137 (1803)
Obergefell v. Hodges, 576 US 644 (2015)
Planned Parenthood v. Casey, 505 US 833 (1992)
Roe v. Wade, 410 US 113 (1973)
Rucho v. Common Cause, 139 S. Ct. 2484 (2019)
Shelby County v. Holder, 570 US 529 (2013)
Whole Woman’s Health v. Jackson, 594 US (2021)
AUTHOR
Ali Imtinan completed his LL.B. from the University of London (International Programme) and has experience working in the commercial law sector in Pakistan. He advised private companies regarding compliance with State regulatory rules and provisions. In addition, Ali has represented clients as well as assisted senior counsel in cases pertaining to judicial review of administrative action. Human rights and constitutional law are two areas of particular interest for him, and he is currently pursuing his Innovation & Justice Fellowship with MIJ.
