How the Supreme Court came to dominate American political debate

The U.S. Supreme Court has always played a powerful role in American life, deciding everything from civil rights and the environment to gun and religious freedom.

But the Supreme Court’s role has changed in some ways, and its nine unelected justices, who serve for life, now have much more influence in the country’s politics.

The Supreme Court, in the final stretch of its 2023-2024 term, ruled that Donald Trump and other former presidents have broad — but not absolute — immunity from criminal prosecution for actions while in office, settling what Chief Justice John Roberts wrote was “a question of enduring importance.”

Trump hailed the decision as a “great victory” for democracy, but President Joe Biden said it undermined the “rule of law” and was a “horrible disservice” to the American people.

Let’s look at the Supreme Court and how this staunch and historically respected institution has become a political battleground.

Simply put, the Supreme Court is the body that governs the laws of the United States.

Judges decide whether laws and government actions comply with the U.S. Constitution. They also interpret laws passed by Congress and determine whether they are being properly implemented.

Lower courts must follow precedents established by the Supreme Court under a legal principle known as “consensus presumptive” (Latin for “to support the decision”), which gives lower court decisions nationwide and long-term importance.

Most cases reach the Supreme Court through an appeals process that begins in lower federal or state courts. The Supreme Court hears more than 7,000 appeals a year, but hears only about 100 cases per term. Justices follow the “rule of four,” meaning that they will hear a case if four of the justices decide it has merit.

By design, the Supreme Court is supposed to be insulated from political change and its justices from political pressure when they rule.

Americans do not vote for who serves on the Supreme Court: Justices are appointed by the president and then confirmed by the Senate.

A president serves for life or until voluntary retirement and can only be removed from office by impeachment, which Congress has attempted only once before, and failed, over 200 years ago.

In fact, because of the structure of the court, one of the most important decisions a president can make is the selection of justices.

Currently, conservatives hold a majority with six justices.

Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all appointed by President Trump.

Republican Presidents George W. Bush and George H.W. Bush appointed John Roberts, Samuel Alito, and Clarence Thomas.

Two of the three liberal justices, Sonia Sotomayor and Elena Kagan, were nominated by Barack Obama, while Ketanji Brown Jackson was picked by Biden.

Jonathan Entin, a law professor at Case Western Reserve University in Ohio who has studied the Supreme Court, said politics have influenced judicial appointments “since the beginning of this country,” but current political discord has changed the dynamics on and off the court.

“Democratic presidents have tended to appoint Democrats and Republican presidents have tended to appoint Republicans,” he said. “What’s changed is that the parties themselves have become more polarized.”

“People from both parties are really focused on the idea of ​​justice going forward,” Entin added. “So it’s a lot more contentious than it was before.”

The current composition of the Supreme Court, with conservatives making up the majority of justices, will not be in place until 2022. But in that short time, the Court has brought about significant changes in the country, starting with its June 2022 decision to abolish the constitutional right to abortion.

The justices also overturned previous rulings that deferred to federal agencies on interpreting ambiguous sections of the law, reducing and weakening the power of agencies like the Environmental Protection Agency. This decision, along with other recent rulings on regulations, will likely shift a lot of power from federal agencies to the court system.

The Supreme Court last year also rejected proposals by President Joe Biden to wipe out all student loan debt and end race-based college admissions policies at Harvard University and the University of North Carolina, overturning decades of U.S. policy on so-called affirmative action.

The Supreme Court goes to great lengths to protect its internal deliberations, and nearly all of its work, including the reading, preparation and circulation of briefs, is conducted in private.

The process seems so almost mysterious that the country was shocked when the Dobbs decision that overturned Roe v. Wade was leaked to the press.

In-person deliberations will likewise be held in secret, without staff present.

The judges sit around a large table in order of seniority, each holding a book and notebook.

Former Supreme Court Justice Stephen Breyer, in an interview with the BBC earlier this year, said a “serious debate” could then take place about the case.

Starting with the Chief Justice, each justice gives their legal opinion on the case and gives reasons why they are persuaded (or not persuaded) by various arguments.

“Nobody speaks twice until everyone has spoken once,” he said. “If you try to get your point across by saying, ‘My point is better than yours,’ you’re not going to get anywhere.”

“But if you listen to other people’s opinions and pay attention at the end of the first round and say, ‘I agree with what you say, but I think it would be better if we did it this way,’ then that’s a real debate,” he added.

As the Supreme Court issues momentous decisions and overturns decades-old rulings, accusations of politicization and partisanship are growing.

According to Gallup, 58% of Americans in September were dissatisfied with the way the Supreme Court was performing its job, the highest level in more than 20 years.

Outcry over judicial ethics has intensified recently following journalists’ investigations into Justice Thomas’ failure to report gifts and Justice Alito’s family flying a flag believed to be the symbol of the Capitol rioters in their home.

Last year, the Supreme Court issued its first-ever code of conduct, but it lacks any enforcement mechanism and advocates, including leading lawmakers, are calling for stronger and more far-reaching reforms.

They propose a binding code of ethics, an expansion of the number of lower court judges, the creation of an independent ethics office, and, crucially, the introduction of term limits.

Some have proposed adding more judges, but opinion polls show that this is widely unpopular among Americans.

Maggie Jo Buchanan, executive director of reform group Demand Justice, told the BBC that gradually extending terms to 18 years could make the Court “depoliticised”, more balanced and better representative of the American people.

“That way, every president would appoint the same number of justices,” she said, “and the Supreme Court would better reflect the will of the people.”

“Currently, Supreme Court appointments are subject to political contingencies such as retirements and unexpected deaths,” Buchanan added. “Because the Supreme Court has so much power over our rules, a one-term president should not appoint more justices than a two-term president.”

Other experts have warned that many of the structural reforms would require constitutional amendments and are therefore unlikely to be feasible or popular.

“There’s a lot to be said for stability,” said Clark Neily, senior vice president for legal studies at the Cato Institute, a Washington, D.C.-based libertarian think tank that advocates for “small government.”

“Even if there are problems, there are many benefits to not changing the way certain institutions operate,” he added.

Neely, a former litigation lawyer who served as co-counsel in the 2008 Supreme Court case that found D.C.’s gun laws unconstitutional, said an institution that has the “final say” on constitutional matters is always likely to spark controversy.

“It’s inevitable,” he said, “and I don’t think anybody has really put forward a proposal that would clearly be a better outcome than what we have now.”