SUPREME COURT: Are judges politicians in disguise?

In an ideal world, the Supreme Court should be independent and neutral. It should be immune from the ebbs and flows of politics i.e it should make decisions solely based on the Constitution.

Independent: The Court should not be influenced by other political agents such as Congress, the president or the public. Justices have fixed salaries and permanent seats to promote independence

Neutrality: The Court should not have any vocal political affiliations. It should treat everyone equally (rule of law) and base rulings on the Constitution and other sources of law

However, there are concerns that the Court is sensitive to public opinion and political bias. Ever since Bush v Gore (2000), where the Court effectively chose the winner of the 2000 presidential election, many have insisted that the Court has become too involved in politics

As such, there has been loads of debate concerning the politicisation of the Supreme Court

Politicisation: the involvement of politics in an institution, especially one that is supposed to be independent and neutral

At A2, you are likely to get questions about the politicisation of the Supreme Court. This can come in different forms such as

-To what extent are Justices 'politicians in robes'?
-'Politicians in disguise'. Assess this view of the Supreme Court.

Here's how I would structure my answer

Intro; Explain the nature of the debate. Why do people think Justices are now politicians in disguise? Briefly explain significant events which have spurred on concerns of the politicisation of the Court e.g. Bush v Gore, the impact of landmark decisions such as the June 2015 same sex marriage ruling


Main body; Don't forget that analysis and evaluation account for 50% of your marks. So ensure you always have a 'However' or 'On the other hand'

NOT INDEPENDENT + NEUTRAL The increased willingness of judges to overturn precedents shows that they are yielding to political pressure. Typically, loose constructionists overturn precedents as seen in Roe v Wade 1973  and Lawrence v Texas 2003. However, even strict constructionists and originalists overturn precedent, ignoring the stare decisis principle. Scalia would argue that overturning a precedent is necessary if the original decision was wrong. Also, he supports overturning precedents that were products of judicial activism eg Citizens United v 2010 and McCutcheon v FEC 2014 overturned McConnell v FEC 1993	INDEPENDENT + NEUTRAL Judges are independent and neutral; in Arizona vs USA 2012, Elena Kagan recused herself from the case to promote impartiality, because she supported the federal government while she was the US Solicitor General
The clout of judicial review. Judicial review is a process where the Supreme Court considers the constitutionality of laws and actions of the executive and legislature. It is updating the meaning of the Constitution. It can invalidate the laws of an elected body - it affects day to day lives of Americans and high profile issues such as same sex marriages, abortion etc. Most prominent in 2000 where Rehnquist even had to apologise for the politicised nature of the Bush v Gore ruling	Most cases are not of this nature Judges tend to ignore highly divisive cases Their interpretation of the law often is not in accordance with their personal views eg Scalia However, as Obama said when he was a senator, judges are not robots, and when a case is so difficult, they will end up 'following their hearts'
President’s bully pulpit; the president often throws his political weight behind a decision or criticise it openly eg Eisenhower supported the Brown v Board ruling, George H W Bush condemed the flag burning ruling. Obama condemned the Citizens United ruling as an outlet for unlimited money, Obama lauded the 2015 same sex marriage ruling Presidents can also comment on cases before rulings, which may influence the outcome eg Obama mentioned in early 2015 that he hopes the Court will rule in favour of gay marriages this year
The increase in 5-4 decisions suggest the Court is becoming more politicised, as political ideology is playing too great a role in rulings The Atlantic pointed out that prior to the Warren Court, only about 2% of decisions were 5-4 rulings. But this number increased with the Warren, Burger, Rehnquist and Roberts Courts. Close 5-4 decisions in Rehnquist (Bush v Gore) Roberts Court with issues such as obama care in National Federation of Business v Sebelius (2012) *Hollingworth v Perry 2013 Salinas v Texas 2013	Judges don’t tend to be politically active, as this is not allowed. For example the last judge to be impeached for political activity was Samuel Chase in the early 19th century In the Roberts Court there has been declining judicial activism. 5-4 decisions tend to be few but high profile. Between 2005 and 2012, on average 43% of cases were 9-0 decisions in the Roberts Court
Court takes public opinion into account too often eg Grutter v Bollinger over 350 amicus curiae briefings were submitted and the court acknowledged the impact of public opinion Court generally sits with public opinion eg mental health death sentence rulings	Population size has grown and public engagement has been facilitated by media and national polls technology. more educated. it is important for the court to consider public opinion to maintain its legitimacy. However, after a certain extent, public opinion should not interfere with independence Court can ignore public opinion. eg 1989 flag desecration decision. To an extent, Citizens United ruling. Lack of cameras in the Supreme Court is protection from public opinion eg prevents the media from taking soundbites from the 2015 same sex marriage hearing
The appointments process is too political. The President attempts to prolong his influence in government by nominating a judge with a similar ideology. Thus Obama- Kagan + Sotomayor 2010 , 2009 The Senate Judiciary Committee holds hearings and the American Bar Association gives an informal rating. This is often not based on the judicial ability, but on issues. The increase in partisanship has worsened this issue, as a Republican Senate Judiciary Committee tends to interrogate a liberal nominee chosen by a Democrat President but give soft questions to a nominee from their own party eg Sonia Sotomayor was asked questions on racial remarks.In terms of the vote, the Senate Judiciary Committee voted to recommed Kagan on a 13-6 vote- a carbon copy of the Sotomayor vote (indicator of partisanship?) Likewise, the ABA is not impartial, as it based its rating of Clarence Thomas on sexual scandals rather than his skills and qualification. Finally, the impact of the media public opinion is too severe as demonstrated by Bush’s withdrawal of Harriet Miers and the rejection of Robert Bork ($15 million was spent on a TV ad campaign against his nomination)	Once appointed, judges are free to behave how they wish as long as they maintain the Article III principle of Good Behaviour. For example, although Stephen Breyer was nominated by Bill Clinton, he voted with the 6-2 majority upholding the Michigan ban on affirmative action in 2014. They are independent with high stable salaries and life tenure. Thus, conservatives were disappointed with Burger and Warren. Anthony Kennedy is often liberal although appointed by conservative Richard Nixon eg he sided Ginsburg, Kagan and Sotomayor in Arizona v United State 2012 - where the Arizona law SB 1070 was examined
The broad language of the Constitution leaves room for judicial activism, which tends to have political reverberations. Judicial activism effectively infringes the right of Congress and the executive to make and implement laws, as rulings become de facto statute.

Conclusion; Choose a side and say why you agree with it. Possibly give possible policy solutions to reduce the politicisation of the Court e.g. ensure cameras are not introduced