Bettering the Bench: What High Courts Around the World Can Teach Us About Our Politicized Judiciary
In America, the idea of an apolitical judiciary appears as a myth to many. Inundated with political framing of judicial decisions, the partisanship of televised Supreme Court confirmation processes,[1] and the political characterization of each of the highest court’s members,[2] it is difficult to refrain from cynicism. While criticisms of a partisan judiciary are not new,[3] in our increasingly polarized society Americans have become steadily more convinced that judges are influenced by political belief rather than the law.[4] These criticisms, warranted or not, can have a dangerously delegitimizing effect on the judicial system. While the legislative and executive branches are intrinsically political, the judiciary has much more to lose when viewed as joining the partisan fray. Why is it that America appears to standalone in this respect? Legal scholars have posited a number of hypotheses to explain the unique nature of our hyper-politicized judicial system in comparison with other countries.
One major component that is often highlighted is the conspicuous nature of the Supreme Court—its justices, its rulings and its nomination processes.[5] In other countries, such as Britain and Canada, nominees are not household names.[6] In fact, mainstream media attention of appointments to their Supreme Courts are rare.[7] As Adam Goldenberg, an adjunct professor at the University of Toronto Law School, writes, “It would not be at all surprising if more Canadians could tell you about Roe v. Wade . . . than could name a single judgment of our own highest court.”[8] The more understated nature of these courts can be explained in a number of ways, one being the subtle and opaque nature of their nomination and confirmation processes where political affiliation is not often exposed.[9] This secrecy, some argue, can help to “secure the court's credibility by preserving an appearance of independence . . . .”[10]
Some commentators and academics also point to the difference in term limits or the implementation of a mandatory retirement age; America’s life tenure for federal judges is an anomaly amongst major democracies.[11] Countries such as Australia, England, Canada, India and Japan have mandatory retirement ages while countries like Germany, South Africa and Russia impose mandatory retirement ages as well as fixed terms.[12] While lifetime appointments in the United States were originally intended to insulate judges from political pressures, many have argued it has had an opposite effect.[13] As conversations of term limits slowly move into the mainstream,[14] and as legislation is even introduced to the House,[15] many point to the success of other courts to bolster their argument.[16]
Others note that high court judges in Europe make a much more concerted effort to arrive at unanimous decisions thus removing political and ideological faction from the discussion.[17] While this comparative lack of dissents may be reflective of “the archaic civil law notion that the law is fixed, clear and discoverable and that all judges do is discovery and apply it,”[18] a high premium is put on decisions that are consensual. Proponents of unanimous decisions note the need for clarity, preserving collegiality and maintaining the authority of the courts and their judgment to ensure the final judgment is not called into question.[19] Although there is a growing trend toward allowing dissenting and concurring opinions, some countries such as Belgium, France, and Italy still prohibit them.[20] This practice is not without its criticisms. Advocates for separate opinions argue that they allow for corrections of error in the future, and that dissents can lead to better quality judgments and the preservation of judicial independence.[21]
Of course, direct adoption of any of these practices would likely not be a perfect fit for our rather unique system but lessons can be learned nonetheless. It is through these comparisons with less politicized high courts that we can parse out the underlying factors that lead to our uniquely political judiciary. While attempting to ascertain an opaque or apolitical nomination process is next to impossible given the transparent nature of modern nominations, attainable changes such as term limits could assuage the political and high-stake nature of nominations that can have implications for generations.
Mairead Kate Burns is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Kelsey Snell, 'Courts Are Not Designed To Solve Every Problem,' Barrett To Say In Opening Statement, NPR (Oct. 11, 2020), https://www.kpbs.org/news/2020/oct/11/senate-judiciary-panel-to-begin-barrett/.
[2] See The Political Leanings of the Supreme Court Justices, Axios (June 1, 2019), https://www.axios.com/supreme-court-justices-ideology-52ed3cad-fcff-4467-a336-8bec2e6e36d4.html.
[3] See Francis Gaylord Cook, Politics and the Judiciary, Atlantic (June 1899), https://www.theatlantic.com/magazine/archive/1899/06/politics-and-the-judiciary/525294/.
[4] Max Greenwood, Majority of Voters Believe Federal Judges Inject Politics into Rulings: Poll, Hill (Dec. 3, 2018), https://thehill.com/homenews/campaign/419457-majority-of-voters-believe-federal-judges-inject-politics-into-rulings-poll.
[5] See Adam Taylor, Why America’s Supreme Court Drama Looks so Strange to the Rest of the World, Washington Post (Oct. 6, 2018), https://www.washingtonpost.com/world/2018/10/06/why-americas-supreme-court-drama-looks-so-strange-rest-world/.
[6] See id.
[7] See id.
[8] Adam Goldenberg, Why Canada's Supreme Court Appointments are Nothing Like America's Circus, Maclean’s (July 16, 2018), https://www.macleans.ca/opinion/why-canadas-supreme-court-appointments-are-nothing-like-americas-circus/.
[9] See Eszter Bodnár, The Selection of Supreme Court Judges: What Can the World Learn from Canada, What Can Canada Learn from the World?, 2017/2 Elte L.J. 104, 141-21 (2017); see also Why US Top Court is so Much More Political than UK's, BBC (Sept. 21, 2020), https://www.bbc.com/news/world-us-canada-45632035.
[10] Rosa Raffaelli, Dissenting Opinions in the Supreme Courts of the Member States: Study, Eur. Parl. Doc. (PE 462.470) 9 (2012).
[11] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & Pub. Pol’y 769, 819-21 (2006).
[12] See id at 820.
[13] See Why US Top Court, supra note 9; see also Kalvis Golde, Experts Tout Proposals for Supreme Court Term Limits, ScotusBlog (Aug. 4, 2020), https://www.scotusblog.com/2020/08/experts-tout-proposals-for-supreme-court-term-limits/.
[14] See Maggie Jo Buchanan, The Need for Supreme Court Term Limits, American Progress (Aug. 3, 2020), https://www.americanprogress.org/issues/courts/reports/2020/08/03/488518/need-supreme-court-term-limits/.
[15] Supreme Court Term Limits and Regular Appointments Act of 2020, H.R. 8424, 116th Cong. (2020).
[16] See Calebresi & Lindgren, supra note 11.
[17] John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 TEX. L. REV. 1671, 1673 (2004).
[18] See id. at 1673 n.7.
[19] Raffaelli, supra note 10 at 9-12.
[20] See id. at 17-20.
[21] See id. at 12-15.