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Is the Supreme Court too politicized?

Fri, Jun 29th, 2012
Posted in All Commentary

No matter what your opinions are on the recent rulings of the U.S. Supreme Court, there is a concern that like Congress, the court and their law clerks are being reduced to a mere appendage of the two powerful political parties.

Has the court become too political? The Supreme Court needs to maintain the people’s respect and trust. The court is the ultimate appellate authority. They are a legal institution, not a political body. Unfortunately, it seems to many that the justices are increasingly swayed by political leanings.

In June 2012 the New York Times and CBS News conducted a poll that found that only 44 percent approve of the job the court is doing and 75 percent believe decisions are sometimes influenced by the justices’ political or personal opinions. If the court is politicized, has their authority been sullied in the eyes of the American people? The court by its very nature decides issues that are politically sensitive, polarizing, and therefore elicit strong feelings from the public.

Over the last century, the percentage of 5-4 rulings has risen dramatically. Prior to the 1930s, 5-4 rulings comprised less than 4 percent of the total. Since 1980, 5-4 rulings have consistently been north of 20 percent of the total. The narrow rulings are reflective of the political polarization of the country.

Extreme partisanship has infected the process of nominating and confirming judges. The U.S. Constitution designed the judicial branch to be separate from the legislative and executive branches, for “checks and balances.”

The Supreme Court generally has been a trusted authority. However, if the court is seen as being too political, then that trust will be eroded. Respect for the court and the integrity of the justices is what maintains their authority in the eyes of the public.

The court in essence stands as a referee of our political system, they are the arbiters of the law. Their authority is the final authority. Bush v Gore is one decision that made many question the court’s ability to make ‘apolitical’ decisions.

Article III, Section I of the Constitution reads, “The judicial power of the United States, shall be vested in the Supreme Court.” Section II says, “The Supreme Court shall have appellate jurisdiction, both as to law and fact.”

I’ve often heard statements like the court’s job is to strictly interpret the Constitution and the court should not legislate from the bench. Often these statements are made by someone who disagrees with the court’s ruling.

When the court hands down a decision, the justices support their vote with their “opinion.” The word “interpretation” is to explain or decipher which naturally makes the interpreters of the law open to differing opinions.

Five Recent Rulings

Let’s look at the court’s recent rulings and the number of 5-4 rulings. In the current make up of the court, four “so- called conservative” judges including Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito often are of a similar opinion. Four “so-called liberal” justices including Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan often are of a similar opinion. Justice Anthony Kennedy often serves as the swing vote to make the 5-4 split.

Of course, the ruling that received the most attention is the 5-4 landmark decision on the Affordable Care Act. It was a 5-4 decision, but not with the so-called anticipated conservative-liberal split. Chief Justice Roberts broke with the conservatives and served as the swing vote siding with the “liberal” side. Roberts distinguished himself by taking politics out of the constitutional interpretation of the law.

The individual mandate is upheld under the power of Congress to tax. The core of the law is upheld. The four liberal justices signed on to the opinion of Roberts although some apparently believed it would have also been constitutional under the commerce clause. The individual mandate stands. For those unwilling to obtain health insurance there could be a line on their tax return to pay the tax for not complying with the mandate.

The court did give the states that don’t want an expansion of Medicaid a way out. They won’t be penalized by the federal government if they don’t expand coverage. Seven of the justices agreed on this ability of the states to opt out.

The Arizona Immigration law ruling was a split decision. The law was struck down with the exception of one provision which will allow police to ask for “papers” to check the immigration status of anyone who is cited or arrested for something else. This was a 5-3 decision as Justice Elena Kagan didn’t participate. This decision did not follow the 5-4 split as Chief Justice Roberts was of a similar opinion as the three “liberal” justices and Justice Kennedy.

Mandatory life without parole for juvenile offenders convicted of murder was struck down with a 5-4 vote. This one fit the 5-4 vote with Justice Kennedy siding with the “liberals.”

The century old Montana law that limited corporate political spending was struck down in a 5-4 decision. Justice Kennedy sided with the “conservative” opinion. The Montana law was at odds with the 2010 Citizens United v Federal Election Commission ruling which opened the flood gates on political cash. With the Citizens United ruling, no limits are allowed on “political speech” from nonprofit or for profit corporations.

A 6-3 vote was also handed down saying it is no longer a crime to lie about receiving a military decoration as it would be an unconstitutional infringement of speech.


While the court seems to be swayed by the power of the political parties and their own personal views, the actions of especially Chief Justice Roberts on the Affordable Care Act demonstrate the ability of justices to stand on strict interpretation of the law. The polarization of the parties tends to have nominees for the Supreme Court who have a history either of being liberal or conservative rather than moderate. Justices are not immune from politics, but I believe generally try to interpret the law before all else.

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