Politics in the Supreme Court

The Supreme Court, as designed by the American Constitution, is a body of the judiciary that is supreme and independent of overt political incursion and involvement. The justices are not popularly elected and are supposedly nominated and appointed for the primary purpose of judging case law decisively and in an unbiased manner. The reality of how the Supreme Court operates runs afoul of the ideal. Instead of a separate entity unaffected by the gale force winds of political change, the Court is a body of nine justices, all with different agendas and varying backgrounds. The process of how cases are heard in the Court and how cases are decided is biased by justices toward certain overall trends ideologically. The Supreme Court is not an inhuman entity that judges others without preconceived notions; rather, it is a very human institution that is and will always be affected by political ideologies and personal feelings. The Supreme Court is political and, despite expectations to the contrary, should remain political.

How the Supreme Court decides to hear a case is perhaps the most important key to its level of political involvement. The justices have more than mandatory guidelines to follow when they are deciding which cases they wish to hear. Justices, despite lifetime appointments in the Court, maintain genuine interests in political and social agendas. When a case comes to their attention that may satisfy part of their agenda, there is at first the need of four out of the nine justices to agree to hear the case (the rule of four). Getting the case on the docket is half the battle; obviously there is the need for the Court to hear the cases at hand and deliberate. Arguments are presented by both parties and, in conference, justices discuss the cases and come to a majority decision. This decision in turn becomes the precedent for further arguments, allowing for a fluid and living series of decisions by the Supreme Court. The justices of one era may present a certain set of interpretations for precedent and the meaning of the Constitution, while another may seek to overturn such decisions in similar cases brought to the Court.

All of the discussion about Court politics would be moot if the issue of judicial review were not discussed. Judicial review, the ability of the Supreme Court to set aside legislation as unconstitutional, has given the Court in its history some discretion in its decision making. Without judicial review, the Court would be without a lot of its power and would merely give strictly pragmatic responses that would not be elaborative as to broader constitutional meaning. Judicial review has allowed different Court characters, both liberal and conservative in nature, to press their agendas as precedent through their decisions.

Once embroiled in discussion and deliberation about constitutionality issues, there is the issue of standing. Standing refers to whether the party bringing suit is actually within legitimate legal bounds to do so. The three standards for standing, as established in Lujan v. Defenders of Wildlife, are left open to significant interpretation by the Court. The first criterion is the need for proven “injury in fact,” which means an invasion of protected legal rights that is “concrete” and “actual or imminent.” The second criterion is necessary proof that there is a “causal connection” between the injurious activity and the complaint. The final criterion for standing is a high likeliness that the complained consequences will be “redressed” by a court decision in favor of the litigant. These standards are obviously not definitive; the Court has wrangled the meanings of such benchmarks since they became precedent in Lujan. Ambiguity in language offers an interesting situation as to what cases are heard and what is considered unsubstantiated by the characteristics of standing.

Several characters throughout the Court’s history have fed the debate over how political the Supreme Court should be. The first such character, and the preeminent historical figure for the Supreme Court, is John Marshall, the chief justice of the Supreme Court from 1801 to 1835. Marshall, in fact, had extensive experience in politics previous to his term in the Court. He was John Adams’ Secretary of State until Adams lost election in 1800. Marshall became Chief Justice in 1801, the dawn of the Democratic-Republican era in America.

In Robert Wernick’s article on Marshall and Thomas Jefferson, there is expressed the cat and mouse game played by both sides as to how the nation would be formed. The Constitution allowed for a supreme court in Article 3, but did not give many of the provisions nor did the document give any sort of structure for the lower courts. John Marshall took charge of the Court and brought it to an equal level to the other bodies of government in the United States. Despite the second-class treatment given to the judiciary branch (conference was held in the basement of Congress), the Court would start to exert its power following Marbury v. Madison (1803).

Marbury v. Madison is probably the crowning achievement of John Marshall’s career in the judiciary because it allowed the Court a foot in the door of power in America. Marshall was cognizant that the Court was not conceived as something that was more than a show court, a secondary body that would receive little attention. A penchant for the political and an opportune case allowed Marshall to exert his Federalist ideology into precedent. The case largely dealt with infighting between lame duck president John Adams and his appointments and the political curmudgeon Thomas Jefferson. Jefferson refused to deliver appointments made at the last minute by Adams and one such appointment, William Marbury, brought suit against new Secretary of State James Madison.

The importance of this case was not necessarily in the details; Marbury was deemed to have the right to his appointment but the writ of mandamus that he submitted was unconstitutional. To the Democratic-Republicans, this was a small victory. It rejected one more Federalist from being part of the judiciary, which would allow that many more cases to be subject to Democratic-Republican scrutiny. Despite the decision of the court in this case, it was the reasoning and the precedent that was set that was the most compelling and long lasting portion of the case. The Court utilized judicial review in its majority decision, which gave it the power to strike down acts that were unconstitutional. Portions of the 1789 Judiciary Act were not constitutional because they expanded the Court’s original jurisdiction, which went beyond the bounds of the Constitution.

Chief Justice Marshall had enabled the Court greater license in determining precedent and limiting the powers of Congress. Marshall was a Federalist, a believer in strong national government, and his decisions over his tenure were attempts to ensure that the federal government would have as strong a role as possible. In Gibbons v. Ogden and McCulloch v. Maryland, Marshall was part of a majority that sought to limit the state’s ability to create isolationist policy and erect boundaries in trade and interaction. This was in direct conflict with Jefferson and his state’s rights platform. Marshall was challenging the President of the United States ideologically, a problem foreseen by the founding fathers when the Constitution was created, but was not explicitly addressed in the founding document. John Marshall was the ideal Chief Justice at the time of the nation’s formation; he was strong willed, affable, and wanted to even the playing field for all three branches of government. The Supreme Court indeed became equal to its moniker.

Two modern examples of the politicized Supreme Court reside in the recent Supreme Court: Ruth Bader Ginsburg and former Chief Justice William Rehnquist. Rehnquist and Ginsburg are not necessarily as overtly political as Marshall was, but both have apparent political agendas that have been borne out in decisions by the Court. Ginsburg is an example of more specific political motivations while Rehnquist had shown more interest in broader political change. Several examples exist for both in which they have exhibited their political leanings.

William Rehnquist’s battle to limit federal habeas corpus influence has been deemed the crux of his own political agenda. But it can be argued that Rehnquist was more broadly interested in conservative ideals such as stronger state power and the limitation of the federal government as a whole. Felker v. Turpin was merely the culmination of was merely the culmination of a decades old bout of hand wringing by Rehnquist that the federal government was going over its bounds and should have a more advisory, rather than regulatory, role in the powers of the states. This included habeas corpus policy, which was made more stringent against repeated writs of habeas corpus by federal regulations during the Clinton administration. In Felker, Rehnquist was in the majority for a decision that deemed nothing unconstitutional about the federal policy but also posited greater strength for the court in taking original writs of habeas corpus. In United States v. Lopez, Rehnquist was in the majority for a decision knocking down the Justice Department’s reasoning for federal anti-gun possession legislation. These two decisions alone indicate Rehnquist’s conservative leanings and such leanings have become characteristic of the Rehnquist court.

Ruth Bader Ginsburg provides a more liberal alternative to the rather conservative nature of the Rehnquist court. Ginsburg, an appointment of the Clinton Administration, came into the Court with a background as an advocate for women’s equality and gender issues. With such a background, it can be assumed preliminarily that Ginsburg would be a firebrand liberal, attempting to bring about change through strong judicial activism. Much to the contrary, however, Ginsburg has proven a paragon of judicial restraint. Much like fellow liberal predecessor Thurgood Marshall, Ginsburg sought to bring change from the ground up using the system in place. Ginsburg did not want to take big steps toward change for women; rather, she has sought liberal reforms through gradual steps that will bring about a more widespread change in the end. Ginsburg has sought liberal change through a traditionally conservative method, a method that should be seen as a creature of the modern, dynamic Supreme Court.

All of these examples and situations considered, the Supreme Court is intended to be nonpartisan and unbiased, but it is designed in a manner that allows the incursion of political agendas. This is not the worst thing that could happen, as everyday life itself is bombarded with varying political ideas. Justices are human and they are naturally going to have biases that will enter into their consideration of case law. This should not be discouraged, because these ideas allow the setting of precedent to be consistent with the prevailing political ideas at the time the decisions are made. The Constitution and the decisions made by the Court are “living”; that is, they are not bound to their era nor are they immutable. The Supreme Court is filled with a variety of characters, each with their own agendas and their own ideas. To stifle such a forum to exist would be to dehumanize the Court and freeze constitutional law in the past.

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