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Old 05-16-2020, 05:35 PM
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Whats the reason the us has a politisized supreme court?


I am not american, as you can hear from my accent, but ive seen alot of politics in my 50 yo life.
How come the court sytem in the US is based on politics? It seems completely un-democratic snf i donty know any other country that has the same. People are wishing for RBG to die so they can elect a new one? Whats good about this system?

Our high court where i live, ive never ever known what political affiliation they have , unless they went into politics later.

It seems so wrong, so turn me right?
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Old 05-16-2020, 05:43 PM
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It's complicated but it's because Supreme Court Justices are appointed by the President (a political figure) and confirmed by the Senate (a political body).
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Old 05-16-2020, 06:30 PM
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No, that’s not right.

I doubt any country has either a hereditary or random nomination process for their Supreme Court or equivalent. So all justices are appointed by the Executive who are political figures ie same as the US. So being appointed by politicians doesn’t necessarily make justices individually or collectively partisan political.

Australia has a much more closed system with Justices to the High Court being the nomination of the Prime Minister with input from the Attorney General and some consultation with the state judiciaries. Undoubted potential for direct political patronage. There have been at least 6 appointments of serving politicians (though qualified) to the High Court. Yet the quality of the nominations has been near universally exemplary. The High Court is not front and centre of Australian life. I doubt many Australians could tell you who was the current Chief Justice (Susan Keiffel who was appointed in 2007, became Chief in 2017 and will retire in 2024 when she turns 70) . Most Australians couldn’t tell you how many High Court justices there are.

SCOTUS is partisan for two reasons 1)it is much more involved in the daily lives and aspirations of Americans and 2) life time appointments.

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Old 05-16-2020, 06:55 PM
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Because the Constitution and laws are open to interpretation (if they were rock-solid obvious, a court wouldn't be needed, and there never would ve split decisions) and some people interpret them more liberally while others interpret them more conservatively.
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Old 05-16-2020, 07:00 PM
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Federal judges are nominated by the president and confirmed by the senate. Judicialships have become a lot more political on the federal level due to things like abortion, or the 2000 presidential election, or the ACA however so politicians are picking more partisan judges. People see judges as a way to achieve political ends when they can't achieve those ends via the legislative or executive branch. If people want to end abortion but can't get it done via congress or the executive branch, they push for partisan judges to ban it.

On the state level some judges are elected, and some judges have to pass an election saying 'should judge so and so be retained'. But I don't know if those systems are really better. I don't know what system works best.

In my state, a commission provides the names of qualified judges and the governor has to pick from one of them. They can't, as far as I know, pick anyone like the president can. I don't think the state senate has to confirm the judge in our state system, and I don't know if other states have other systems.

However in some places judges are elected the same way sheriffs or prosecutors are. Wisconsin recently had an important election for a judge on the state supreme court.

I'm not sure what system could create a more impartial judiciary because on the federal level its becoming a problem.
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Old 05-16-2020, 07:56 PM
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No, thatís not right.

I doubt any country has either a hereditary or random nomination process for their Supreme Court or equivalent. So all justices are appointed by the Executive who are political figures ie same as the US. So being appointed by politicians doesnít necessarily make justices individually or collectively partisan political.

Australia has a much more closed system with Justices to the High Court being the nomination of the Prime Minister with input from the Attorney General and some consultation with the state judiciaries. Undoubted potential for direct political patronage. There have been at least 6 appointments of serving politicians (though qualified) to the High Court. Yet the quality of the nominations has been near universally exemplary. The High Court is not front and centre of Australian life. I doubt many Australians could tell you who was the current Chief Justice (Susan Keiffel who was appointed in 2007, became Chief in 2017 and will retire in 2024 when she turns 70) . Most Australians couldnít tell you how many High Court justices there are.

SCOTUS is partisan for two reasons 1)it is much more involved in the daily lives and aspirations of Americans and 2) life time appointments.
I agree with you that the previous answer is not right as high court justices in any democracy are going to be appointed, directly or de facto, by the government in power, and AFAIK by the executive branch. The process in Canada is somewhat different than in Australia but basically the same in principle and does result in the crucial objective of an independent judiciary. As in Australia, most Canadians could not name the political affiliation of any Supreme Court justice, and even those familiar with their rulings might be hard-pressed to guess whether they have any political affiliation at all. The justices are effectively appointed by the Prime Minister, although the actual process is a bit more convoluted; technically they are appointed by the Governor General on the advice of the Privy Council, the most influential group in it being the Cabinet, which is headed by the Prime Minister. Split decisions do occur, of course, but I have never known of any to be clearly politically aligned, and certainly not as predictable as SCOTUS decisions frequently are.

The real reason the US Supreme Court is so polarized is because US politics is so incredibly divisive, and seemingly getting more so all the time. Your reason #1 is just a side effect of that basic fact. Reason #2 I don't think is really relevant, as a mandatory retirement age would just create more opportunity for partisan presidents and a partisan Senate to populate the court with their partisan favorites. The Supreme Court has sadly become a partisan extension of whatever party has had the opportunity to make the most nominations. There is barely even a pretext of judicial independence or impartiality. On rare occasions justices have proven surprisingly independent, and occasional decisions are unexpected, but for many years now 5-4 split decisions along strictly partisan ideological lines have been common. Those justices who claim impartiality on the grounds of constitutional originalism have sometimes proven very amenable to highly creative interpretations of what the framers "really meant" in direct contrast to what they actually wrote.

We have yet to see how things will play out in the long term with Scalia's death and the two relatively recent appointments. The one glimmer of hope is that I think John Roberts is well aware of the constitutional dangers of the Court's sinking reputation as an actual judicial body, and despite his stalwart conservatism, Roberts may become the new swing vote on what would otherwise now by a heavily Republican-leaning court.
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Old 05-16-2020, 08:13 PM
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One reason is that Supreme Court decisions are perceived as being "weaponized" in a way that other nations probably don't. For instance, the pro-life, pro-traditional-marriage factions saw Roe and Obergefell as political affronts to them. Same for people getting mad over Hobby Lobby or Janus - they perceived it as "team red won, team blue lost."
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Old 05-16-2020, 08:27 PM
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One reason is that Supreme Court decisions are perceived as being "weaponized" in a way that other nations probably don't. For instance, the pro-life, pro-traditional-marriage factions saw Roe and Obergefell as political affronts to them. Same for people getting mad over Hobby Lobby or Janus - they perceived it as "team red won, team blue lost."
No, that's just a restatement and a few examples of the social divisiveness I was talking about. I would remind you for example that way back in 1988, in contrast to the hedging of Roe v Wade, the Supreme Court of Canada overturned all abortion laws altogether, in their entirety, and aside from muttering from Christian fundamentalists and the like there wasn't that much of a to-do about it. Likewise it was instrumental in legalizing same-sex marriage years ago.
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Old 05-16-2020, 08:53 PM
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There are multiple factors, some already mentioned.

In countries with parliamentary sovereignty, like the U.K., there usually is a supreme court that's important, but less of political decision point.
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Old 05-16-2020, 09:20 PM
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The perception is greater than the reality. The reality is that the majority of SCOTUS decisions are unanimous. To put it another way, Clarence Thomas and Ruth Bader Ginsberg mostly vote alike. Only about 1 in 5 cases are decided by 5-4 vote. Some of those don't even fit the model of the entirely politicized court. A Republican appointee was the author of a series of 5-4 opinions in the cases that culminated in SSM being legalized, as an example.

The perception is there partly because it benefits politicians. They cherry pick the examples from the minority of cases that did break along partisan lines. They then churn the highly partisan electorate with messaging about only those cases that fit the politicized court narrative. That gets them votes and campaign contributions.

It also tends to benefit the media because they get more attention from stories about the much anticipated and already politicized divisive cases. That means they cover those cases more closely. Like "If it bleeds it leads" for SCOTUS cases there is an element of "If it outrages a significant chunk of the population, it leads."
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Old 05-17-2020, 12:49 AM
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I agree with you that the previous answer is not right as high court justices in any democracy are going to be appointed, directly or de facto, by the government in power, and AFAIK by the executive branch. The process in Canada is somewhat different than in Australia but basically the same in principle and does result in the crucial objective of an independent judiciary. As in Australia, most Canadians could not name the political affiliation of any Supreme Court justice, and even those familiar with their rulings might be hard-pressed to guess whether they have any political affiliation at all. The justices are effectively appointed by the Prime Minister, although the actual process is a bit more convoluted; technically they are appointed by the Governor General on the advice of the Privy Council, the most influential group in it being the Cabinet, which is headed by the Prime Minister. Split decisions do occur, of course, but I have never known of any to be clearly politically aligned, and certainly not as predictable as SCOTUS decisions frequently are.

The real reason the US Supreme Court is so polarized is because US politics is so incredibly divisive, and seemingly getting more so all the time....
I cannot speak for Australia, but I will point out that the Supreme Court of Canada (SCC) is a general appellate court. It is the highest court in the land, and does deal in constitutional matters where politics could matter, but it also decides such non-political matters as contractual disputes, family disputes over wills, disagreements over land titles, intellectual property issues, and matters involving criminal and administrative law. These are things where politics doesn't matter. So, for such a court, what is needed is a good all-around jurist, and not a political appointee.

The Supreme Court of the United States (SCOTUS) pretty much only decides constitutional matters, where politics does matter. It is not a general appellate court--it will never decide a matter of contract, unless that matter has some sort of constitutional implication--and as such, appointing a judge for political reason is common, if not expected.
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Old 05-17-2020, 07:47 AM
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The perception is greater than the reality. The reality is that the majority of SCOTUS decisions are unanimous. To put it another way, Clarence Thomas and Ruth Bader Ginsberg mostly vote alike. Only about 1 in 5 cases are decided by 5-4 vote. Some of those don't even fit the model of the entirely politicized court....
Cites? Your figures differ from those I obtained by examining 21 Wikipedia pages listing cases from 1999 through 2019: https://en.wikipedia.org/wiki/2001_t..._United_States et cetera.
Splits were:
635 9-0
307 5-4
169 6-3
156 7-2
140 8-0
102 8-1
42 6-2
38 5-3
29 7-1
11 Other
Yes, 48% (not quite a majority) were unanimous, but 5-4 and 5-3 outnumbered 6-3 and 7-2 added together. On the 5-4 decisions, Ginsberg and Thomas voted together less than 12.4% of the time.
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Old 05-17-2020, 08:16 AM
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Three reasons:

(1) Life tenure, which is a no-good, very bad, incredibly stupid aspect of SCOTUS that has never made sense and that has never been defensible. I thought it was dumb when my high school civics teachers tried to rationalize it to me as a teenager, and I think it's even more ridiculous now.

(2) The lottery nature of appointing Justices - SCOTUS appointments today are essentially a lottery scheme for lucky presidents, and then there's an additional lottery in that the president's party must also control the Senate when the given Justice retires or dies. There's no normalcy, predictability, or logic to it, & it's insane.

(3) The nature of US judicial review - I am not an expert in international court systems, but judicial review in the US is practiced differently than it is in, say, Canada, where as I understand it Court decisions can still be overturned by a supermajority of the Canadian legislature. In the US, when SCOTUS overturns a law or sets a stupid precedent, that's it; there's nothing anybody can do to override such a decision, and everyone is just obligated to go with it. The nature of US judicial review is why I think that in the coming Court-packing/SCOTUS wars, one of the first things that'll happen will be the widespread adoption of jurisdiction stripping, just so that SCOTUS will be affirmatively barred from applying judicial review to top Democratic priorities.

I mean, it doesn't take a rocket scientist to see that what the Repubicans want is perpetual veto power over Democratic laws via SCOTUS fiat. The interaction of the three factors above explains why that is at least perceptually possible, even if there's little likelihood that Democrats would actually abide by that dynamic & not resort to radical responses of their own.
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Old 05-17-2020, 08:39 AM
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I think that, like many of our issues today, it ultimately goes back to our electoral system. Our First-Past-The-Post system ensures that there will only be two, increasingly divisive, political parties. Instead of encouraging cooperation between parties, it instead systemizes an "us-vs-them" mentality. It's not enough to win- the other party has to lose.

With the seats being for life, this means that when a President selects a justice, it's in his best interest to pick someone who is "safe"- the party wants to select someone who they know will vote their way.

It's a pretty broken system, if you ask me.
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Old 05-17-2020, 08:44 AM
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The Supreme Court of the United States (SCOTUS) pretty much only decides constitutional matters, where politics does matter. It is not a general appellate court--it will never decide a matter of contract, unless that matter has some sort of constitutional implication--and as such, appointing a judge for political reason is common, if not expected.
This is absolutely false. The majority of cases are ones in which the Supreme Court is interpreting federal law and there is very often not a constitutional question.

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(3) The nature of US judicial review - I am not an expert in international court systems, but judicial review in the US is practiced differently than it is in, say, Canada, where as I understand it Court decisions can still be overturned by a supermajority of the Canadian legislature. In the US, when SCOTUS overturns a law or sets a stupid precedent, that's it; .
Incorrect. When the Supreme Court is merely interpreting federal law, it can be reversed by an act of Congress. This happens often.
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Old 05-17-2020, 09:18 AM
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Conservatives are determined to overturn all "liberal policies" in the the last 100 years. They, through legislation or the courts want to end the voting rights act, roe vs wade, title IX, gay marriage, minimum wage, class action law suites, etc. Hence the existence of the Koch funded Federalist Society a hideous organisation through which all Republican judges are vetted. In doing so they want justices who they know will make the "correct rulings".
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Old 05-17-2020, 02:54 PM
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The Supreme Court's rulings on the constitutionality of a law can also be overturned by amending the Constitution. That rarely is considered a viable option, but it's certainly possible.
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Old 05-17-2020, 04:13 PM
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I think that, like many of our issues today, it ultimately goes back to our electoral system. Our First-Past-The-Post system ensures that there will only be two, increasingly divisive, political parties. Instead of encouraging cooperation between parties, it instead systemizes an "us-vs-them" mentality. It's not enough to win- the other party has to lose.
Yes, but this system produced tolerable results for most of U.S. history. (The U.S. dominated the world for 150 years; its politics couldn't have been too deranged.) Both parties were "big tent" parties, and there was good cross-over: consider the "pro-business" Teddy Roosevelt with his anti-trust and environmentalist agenda.

The severe polarization, where there are no longer moderates available to "cross over," began a few decades ago, with the rise first of cable news, and then Google and social media.
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Old 05-17-2020, 04:53 PM
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In the US, when SCOTUS overturns a law or sets a stupid precedent, that's it; there's nothing anybody can do to override such a decision, and everyone is just obligated to go with it.
Not true. Look up the reason behind the Eleventh Amendment.
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Old 05-17-2020, 10:29 PM
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Our First-Past-The-Post system ensures that there will only be two, increasingly divisive, political parties.
FPTP has a bad rap for this but almost all electoral systems eventually evolve into two major parties however the cake is sliced. Few democracies have multiple viable/major parties and it's a open question whether coalition governments produce any better outcomes in governance.


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The severe polarization, where there are no longer moderates available to "cross over," began a few decades ago, with the rise first of cable news, and then Google and social media.
There are plenty of moderates in the US political landscape, possibly as much as a plurality of them were they corralled as a bloc ... they just don't vote. And both major parties are happy with the status quo of dueling bases.
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Old 05-18-2020, 07:40 AM
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FPTP has a bad rap for this but almost all electoral systems eventually evolve into two major parties however the cake is sliced. Few democracies have multiple viable/major parties and it's a open question whether coalition governments produce any better outcomes in governance.
Agreed.

The other three major countries which use First Past the Post at the national level are Canada, the UK, and India.

In the current Canadian House of Commons, there are five parties.

In the current British House of Commons, there are 10 parties.

In the current Indian Lok Sabah, there are over thirty parties.

The US is unique in its “two and only two” party duopoly. FPTP may contribute to that result, but that’s not the sole cause. For instance, note that the other three countries are parliamentary systems, where people can vote for third parties without worrying about “wasting their vote”, as third parties can have influence in government, unlike the unitary executive in the US.
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Old 05-18-2020, 08:02 AM
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The reason is that power politics is more important than the tireless quest for justice.
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Old 05-18-2020, 09:05 AM
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Anti abortion people are really into seeing Roe V. Wade overturned. They would pretty much vote for anyone who says they will appoint judges to do that. They don't care how many porn stars Trump has banged.
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Old 05-18-2020, 09:50 AM
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The reason is that power politics is more important than the tireless quest for justice.
But that doesnít address the OPís question: why is power politics more influential in the US judicial selection process than in other countries? All countries have power politics but not all countries have a politicised court system.
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Old 05-18-2020, 02:19 PM
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Previous thread on related topic: Supreme Courts ...How others go about it.
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Old 05-19-2020, 08:53 AM
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(3) The nature of US judicial review - I am not an expert in international court systems, but judicial review in the US is practiced differently than it is in, say, Canada, where as I understand it Court decisions can still be overturned by a supermajority of the Canadian legislature. In the US, when SCOTUS overturns a law or sets a stupid precedent, that's it; there's nothing anybody can do to override such a decision, and everyone is just obligated to go with it.
That's not quite accurate. There are certain provisions in the Charter of Rights which can be overridden, using the notwithstanding clause, but it has been used very rarely in the past 35+ years.

Other than those specific provisions, it's just like in the US: a constitutional ruling can only be overturned by a constitutional amendment, or by trying to get the Court to change the scope of its ruling.

In the two examples Wolfpup gave, same-sex marriage and abortion, the federal government never considered using the notwithstanding clause. In the one case, it fully implemented same-sex marriage by legislation across the country, and in the second, although it tried to pass legislation on abortion, it was defeated in Parliament and no government since then has touched it. The decision and the lack of an abortion law seems to have general acceptance.

And in the case of the firearms registry, an intensely political debate, the SCC unanimously upheld the federal law requiring the registration of all firearms in Canada. The response was a political one: the Conservatives campaigned on repealing the registry, and eventually succeeded in doing so. (Note that this was one of the areas that was not subject to the override clause.)

I think these examples show that the comments on the extreme polarisation in the US are the accurate answer to the OP. It's not that other high courts don't deal with significant public issues; it's that other countries aren't so polarised as the US is, so there is greater acceptance of the court decisions.
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Old 05-19-2020, 09:03 AM
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Likewise it was instrumental in legalizing same-sex marriage years ago.
The SCC was involved in the implementation, but it never actually ruled on whether same-sex marriage was constitutionally required.

There were court actions in several provinces that held that same-sex marriage was constitutinally required, but the federal government chose not to appeal those rulings. Instead, it posed three reference questions to the SCC, asking for guidance on its proposal to implement same-sex marriage. The SCC gave a unanimous decision which held that the proposed bill would be constitutional, but explicitly stated it was not ruling on wehter SSM was itsefl constitutionally required. In short, the government accepted the rulings from the lower courts but engaged in the SCC to determine how to implement it.

Interesting side note: Prime Minister Chretien in an interview when he retired, said htat he was surprised by the rulings and would never have thought that the equality clause would have that effect, but he accepted it. The significant point is that Chretien was one of the key drafters of the Charter, including the equality clause. His approach is a rebuttal to the idea of original intent: he didn't try to say the courts were wrong because they didn't match his original idea of what s. 15 would do, but accepted that once the Charter was in force, it was subject to interpretation by the courts.

Note as well that that the Chief Justice of Ontario, McMurtry, who wrote one of the key decisions upholding same-sex marriage, was one of the other architects of the Charter. What does it say about the whole idea of original intent when two of the key drafters subsequently disagree on how to interpret their constitutional document?
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