Opinion: Ginsburg’s death highlights unhealthy centrality of US Supreme Court
22 September 2020
With so much power at stake, it’s no surprise the US Supreme court has become increasingly politicised, argues Professor Ronan McCrea (UCL Laws).
The death of the US Supreme Court justice Ruth Bader Ginsburg has attracted widespread attention. Hers was a trailblazing career in which she overcame endless barriers placed in her way by a patriarchal society to end up as one of the most well-known judges in the history of the Supreme Court.
However, the level of attention and political controversy set off by her death highlights the unhealthy centrality of the US Supreme Court to political life in the United States and provides a broader warning to progressives who are tempted to focus on courts as a place to pursue their political goals.
While much of the attention drawn by Ginsburg’s death results from her remarkable life story, it is also due to the fact that her death has huge political ramifications.
The appointment of a Supreme Court judge is particularly important because of the near-impossibility of amending the US constitution. Amendments require the support of two-thirds of Congress and three-quarters of the states. In the current partisan political atmosphere it is unthinkable that any significant amendment could garner such support.
This means that the interpretation of the constitution by the judiciary assumes extraordinary importance as there is little chance of an interpretation of the constitution by the judiciary being overturned through the political process.
The importance of the judiciary is further enhanced by the fact that the US constitution contains commitments to abstract principles such as liberty which can be interpreted in any number of ways.
Thus, when, in 2015, the US Supreme Court ruled by five votes to four that the constitution required recognition of gay marriage, that was that. There was no chance that this interpretation of the constitution could be reversed through the political process. The only possible way for conservatives to reverse this defeat was to seek the appointment of conservative judges who would overrule that decision.
With so much political power at stake, it has been inevitable that the court has become increasingly politicised and its key members personally famous. From the mid-1950s on, liberals used the court to win a series of victories in areas such as racial segregation, abortion and gay rights.
However, conservatives have hit back. Samuel Moyn of Yale University has pointed out that it is historically rare for courts to be major progressive forces, and in recent times Republican appointees to the Supreme Court have handed triumphs to conservatives on issues such as affirmative action programmes and campaign finance reform.
In this high-stakes, partisan atmosphere, individual judges have become celebrities. Justice Ginsburg became known as “the notorious RBG” (from her initials) and had a film made about her life. Her debates with her conservative former colleague Antonin Scalia even featured in an opera.
This hero-worship along partisan lines is very unhealthy for an institution such as the Supreme Court. While power can go to politicians’ heads, they can always be humbled by the electorate. Supreme Court judges, on the other hand, are not similarly accountable.
More importantly, while it is impossible to remove political ideology entirely from the process of interpretation of the law, courts have weak democratic credentials. Their authority rests on the idea that the legal and political answers are distinct and that, in interpreting the law, judges are not merely carrying out partisan politics by other means.
This idea is increasingly hard to sustain in the United States. The process of judicial nomination is now entirely partisan. Republican senators who refused to allow president Barack Obama to nominate a justice in 2016 because it was an election year are now pushing to get a Trump nominee installed before the election. Democrats who angrily insisted that blocking the nominee of a president in an election year was a scandal are gearing up to stall any nomination.
The end result is a decline in the credibility of the court as an impartial umpire. This could have serious consequences in the long term for the rule of law and the health of the US constitutional system.
These issues are not unique to the United States. In Europe, the powers given by EU treaties to judges to enforce EU law has meant that key issues such as privacy protections online, bio-ethics and gender equality have been decided by the courts rather than elected politicians. In the UK the prominent role played by the Supreme Court in the Brexit process has led to calls from the Conservative government to restrict the role of judicial review.
That said, the problem is less acute. The European Court of Justice issues a single ruling in all cases, thus preventing anyone from knowing how a particular judge voted. In the UK, while judges such as Lord Bingham and Baroness Hale did begin to develop a degree of celebrity, this was cut off by the fact that, unlike their US equivalents, they did not have life tenure and had to retire just as their fame was getting off the ground.
In Ireland judges have not become famous public figures and our Supreme Court is the better for it. Ruth Bader Ginsburg’s remarkable life and triumph over sexism in the law has drawn deserved praise. However, the degree of celebrity she achieved and the political rancour that the process of replacing her is unleashing represent unhealthy trends for the Supreme Court she served and the constitutional system of the United States.
This article was originally published in the Irish Times on Tuesday 22 September, 2020.