Oh the humanity: A political Supreme Court

2012-07-05  

The Authority of Law

The Authority of Law by James Earle Fraser, guarding the west side of the United States Supreme Court building | Matt H. Wade

Last week’s health care ruling by the United States Supreme Court had many commentators arguing whether the decision was a proper discharge of judicial authority, or if it had been tainted by political considerations.

This question, laced with speculation of court intrigue and outside pressure, seems rooted in an eternal concern Americans have with their Supreme Court. Its answer is usually in the eye of the beholder. Most will profess their unwavering belief in the purely judicial nature of the court – but usually more so on days when they happen to agree with a court ruling.

Clearly, the citizens and leaders of the United States expect their Supreme Court to be a strictly judicial body. The justices are supposed to apply the laws and the Constitution, not make “activist” decisions. The observation or suspicion that the court acts politically usually comes with an air of righteous exasperation.

Such expectations are squarely at odds with legal scholars and pretty much the rest of the world who routinely observe that the Supreme Court is plainly political. What’s more, they find a political Supreme Court rather a non-issue, if not a necessity. Why?

Reading the U. S. Constitution as a foreigner, the use of unspecific, qualitative descriptors is striking. Terms like “due” process, or “unreasonable” searches may have been useful in contrast with a system in which a monarch could imprison people at will. But they hardly provide specific instructions to the legislative or executive.

Compare this to a different constitution, Germany’s Basic Law, which delineates in over 150 detailed articles individual rights and principles of government. Instead of a generic right to habeas corpus, for example, it spells out specifically that “police may hold no one in custody on their own authority beyond the end of the day following the arrest”. It lists 13 specific taxes and how they are to be allocated to the union or the states – no discussion here what’s a penalty and what’s a tax. And it is a living constitution – it can be relatively easily modified by a majority of two thirds of both houses of parliament.

In the United States, for a lack of such specifics in the Constitution, the task of fleshing out the details falls to the Supreme Court. But filling in those details, which in other country might be subject of a lively parliamentary debate, does not become an apolitical task just by leaving it to a judicial body. Quite the opposite is true: The nature of the task makes the body a political one.

Yet, in one of the time-tested rituals of American politics, every nominee to the Supreme Court is made to pledge judicial restraint and disavow any political thinking. That’s like requiring an astronomer in his job interview to swear that the earth is flat.

Roberts duly asserted that the Supreme Court justices are just the umpires, calling the balls, not making the rules.

Well, even if that analogy holds true, maybe that’s because the umpires can rely on the official MLB rule book with no less than 130 pages. But the U. S. Constitution has just five pages. That’s like reducing all the ballgame rules to something like: “The game shall be conducted fairly and last a reasonable amount of time.”

The umpire might not change that rule, but he sure would have a lot to say about how the game is actually played. Or as John Marshall put it: “Those who apply the rule … must of necessity expound and interpret that rule”.

So inherently, the Supreme Court is political. There is no shame in that because somebody needs to make those decisions.

In comparison, Germany knows no such discussion about the political nature of its Constitutional Court, which is the U. S. Supreme Court’s counterpart. And that’s certainly not because of the court’s timidity. Over the years, it has dealt a number of very visible blows to the government. It has a tradition of defending and expanding the individual rights enumerated in the constitution, often consistent with popular sentiment.

Rather than trying to artificially limit the role of the court, the German constitution and the court’s charter just make sure that the court fills its political role in a balanced manner.

Justices are neither appointed for life, nor nominated by the chief executive. They are elected, in largely confidential proceedings, for a single term of 12 years by special bodies representing the states and the federal parliament. The actual procedure is so complicated only the Germans could have come up with it, but basically, a nominee must receive the votes of two thirds of the respective body to be elected.

Realizing the danger of gridlock in this design, the political parties have a longstanding accord that assigns quotas to each party. A rotation scheme decides which party gets to nominate a successor for a retiring justice. Rarely does this lead to public debates, let alone political drama.

Such approach may raise concerns of cronyism and partisan politics. In fact, though, it produces a court that enjoys great respect among the public and legal scholars and seems very much above the partisan fray. In the last forty years, only 8% of all decisions came with a dissenting opinion – compared to more than 60% of decisions in the U. S. Supreme Court which have a dissent on file. (Note that the comparison is not exact for a number of reasons, but you get the idea.)

Disclaimer, just in case: Nothing in this article is supposed to suggest that one system is better than the other. It’s just pointing out that there can be very different approaches to similar issues.

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