A 30 mark essay on the nature of the Supreme Court concluding that the SCOTUS is a politicised institution. This essay was praised highly for its use of examples. Received 28/30= A*.
‘A political, not judicial institution.’ Evaluate this assessment of the Supreme Court (30)
The Supreme Court of the United States (SCOTUS) is a core institution within American
politics, established under Article 3 of the Constitution. It acts as the final and most supreme
court for appeals, as well as the defender of rights established in the Constitution; both
implied and enumerated. Its very nature as a Constitutional court, with a sovereign-
entrenched constitution means that it is inevitably caught up in the political process. With this
level of responsibility comes great power, and the Court has been historically and
contemporarily accused of abusing their power and acting like a political rather than a
judicial body; Justices have been described as politicians in disguise. The two key arguments
for the politicisation of the Court are the partisan appointments process and the philosophy of
judicial activism. The two key arguments in favour of the judicial nature of the Court are the
principle of judicial independence and the philosophy of judicial restraint. This essay will
explore how the claim that the US Supreme Court has become a political, not judicial
institution, especially in recent years.
There are a number of case studies across the last 50 years to prove that the appointments
process is politicised. Whilst on the surface, it seems like the appointment process is
acceptably vetted by other branches of government, over the last 50 years, the process has
been poisoned by partisan alignment. Justices are nominated by the President and confirmed
by the Senate. It is broadly accepted that a president will appoint a candidate sympathetic to
their agenda, which some use to argue that candidates are indebted to those who appointed
them. The longevity of Justices is becoming an increasingly considered factor in their
appointments, with the two most recent successful nominees, Justice Brown and Justice
Coney Barrett, being 50 and 48 respectively at the time of their appointments. This strategic
choice by Biden and Trump means that they both secured a justice who will realistically be a
justice for the next 25-30 years. This was a politically fuelled decision as it helps to ensure
ideological balance for the future courts. Additionally, the related government branches are
also ideologically fuelled. Following the death of Justice Scalia in 2016, Obama sought to
nominate Garland to the SCOTUS, however this was blocked by the Republican majority in
Congress; citing that they should wait to see the result of the presidential election that year
before a nominee was selected. The fact that no attention was given to the will of the
president in the view of partisan cooperation proves that individuals involved in the
appointments process believe that there is political gain from SCOTUS appointments. When
Justice Ginsburg died, it was expected that the precedent set by the Scalia controversy would
be followed, but this was not the case. Due to the Republican majority and the removal of the
filibuster rule for appointments, the Republicans successful replaced Ginsburg with Coney
Barret in an election year. The lack of regulation on the appointment process allows the
process to be unnecessarily political.
However, the Supreme Court is not able to entirely withstand the winds of social change
within America; there is a degree of compromise amongst ‘conservative’ justices where
social change and the will of the people champions judicial ideology. The appointment of
Alito to replace O’Connor swung the balance of the Court to a stronger conservative
dominance, however, this did not stop the justices from ruling in favour of same-sex marriage
in Obergefell v. Hodges. This shows that judges may have political motivation, but this is
different to an established political agenda. Life tenure also stabilises Justices by protecting
them from repercussions of dissenting from their expected viewpoints. Even though Trump
had appointed Justices, such as Gorsuch, these nominees still joined others in ruling that his
use of executive privilege could not be used to justify withholding his tax returns. The
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