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With a 54% approval rate, the Judicial branch is looked upon most favorably by the American people compared to the Executive, with 49%, and the Legislative with 23% (Gallup.com). Despite having the highest approval rating of the 3 branches of government, the Judiciary is often an afterthought when it comes to being covered in the media or being on the minds of American people. This could be for a variety of reasons, ranging from hearings not being televised, the court only being in session for 9 months or Justices rarely making public appearances or giving speeches. However, I believe that the primary reason that the people and media seldomly pay attention to the Supreme Court is because the court is not elected, and the court rarely changes. The only time in which the Supreme Court receives national news coverage is when a Justice is about to be appointed, and the way in which they are appointed has become an issue due to the current climate of bipartisanship.
The independence of the Judicial branch from party politics was intentionally written into the Constitution to uphold the integrity of the highest court in the land. Hamilton addressed this when he writes in The Federalist 78, “The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.”(Hamilton). Unfortunately, the nomination of Supreme Court Justices have become purely political, as Presidents select nominees based on their views, purely for the sake of having a Justice on the court who supports their agenda. While it is not surprising that Executive branch would want support from the Judicial branch, it is a problem because it contradicts the Founding Fathers’ wishes and leads to gridlock. The Founders wanted the most qualified people to be nominated for the Supreme Court, not for it to become politicized.
The most clear example of party lines deciding Supreme Court Justices can be seen in 2016, when a Republican controlled Senate refused to confirm Democratic nominee Merrick Garland. Majority leader Mitch McConnell rationalized the decision by stating, “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice.” (USA Today). While it’s easy to see the root of McConnell argument, the Supreme Court is not a form of representation. This is made clear by the fact that Judges are nominated, not elected. Judges are suppose to be nominated on merit alone, but Republicans and Democrats alike see the importance of having the Supreme Court in their favor, and are aware that a Democratic President would mean a liberal leaning justice and vise versa. Democratic Presidential candidate Pete Buttigieg said as much in a CNN town hall when he stated,“What we need to do is stop the Supreme Court from sliding toward being viewed as a nakedly political institution.”(The New Republic). Another way we can see the increased polarization of the court is the number of 5-4 decision, split down party lines. So, instead of an independent court where the most qualified and objective people possible are interpreting the Constitution like the Fathers intended, we are left in a system where Presidents are incentivized to nominate the youngest, and most partisan judge possible.
This system is clearly broken, but there are solutions being suggested to fix this. One comes from current Democratic Presidential candidate Andrew Yang, who states on his website, “Current Justices can expect to serve for 40 or more years. For historical context, the average Justice has served for 15 years…This isn’t the way it was envisioned at the founding of our country, when life expectancy was shorter and Justices would often retire or resign well ahead of their deaths…The answer to this is to impose term limits on Justices, and set their terms at regular intervals.” (Yang2020.com). Yang suggests imposing term limits on Supreme Justices, as this would make nominating younger and more partisan Judges less attractive to Presidents than the current life appointments Justices enjoy now. While Democrats may be biased in their crusade to reform the Supreme Court due to a Republican currently heading the Executive Branch, the Supreme Court becoming more and more like a political institution is a serious problem, and against the intentions of the Founders who established the Judicial Branch.
“18 Year Term Limit for Supreme Court Justices – Yang2020 – Andrew Yang for President.” Yang2020, www.yang2020.com/policies/scotustermlimits/.
Ford, Matt. “A Better Way to Fix the Supreme Court.” The New Republic, 4 June 2019, newrepublic.com/article/154047/better-way-fix-supreme-court.
Gallup. “Supreme Court.” Gallup.com, Gallup, 28 Nov. 2019, news.gallup.com/poll/4732/supreme-court.aspx.
King, Ledyard. “’We’d Fill It:’ Mitch McConnell Blocked Obama Supreme Court Pick but Says He’d Help Trump Fill a Vacancy.” USA Today, Gannett Satellite Information Network, 29 May 2019, www.usatoday.com/story/news/politics/2019/05/29/mcconnell-blocked-obama-supreme-court-choice-wouldnt-stop-trump/1268883001/.
The Avalon Project : Federalist No 78, avalon.law.yale.edu/18th_century/fed78.asp.