The Supreme Court as a Political Entity

While I accept that theoretically a judge should not consider extralegal factors when making a ruling, I cannot accept your premise that all judges rule as neutral arbiters who rely solely on precedent, Constitutional text, and original intent of the Framers. As with any other individual in public service, judges are still human beings, and thus bring with them their own prejudices, personal biases, and preconceived notions when taking the bench.

This is not to say that they do not have the intent to try to rule neutrally, or that the oath of office taken is cast by the wayside like refuse. Rather, I purport that the very process under which they have risen to be considered for the bench is a political one, and indeed makes them a part of the political game outside which you consider them.

I will concede that you are correct in part, at least on some level. It is obvious that the Court, as conceived by the Framers, is designed to be separate from the vagaries of regular political office. For example, in Article I of the Constitution, the Senate and the House of Representatives are subject to proscribed terms and limitations. In Article II, the President is subject to even more stringent restrictions and a limited term as well. Article III, however, states that judges are to “hold their Offices during good Behavior,” and therefore are not elected by popular vote.

Similarly, this process is believed to remove the pressures of influence groups that the President, Representatives, and Senators face: since judges are not elected officials but are appointed, they will face less lobbying from interest groups and their decisions are less likely to be colored by outside influences.

In addition, the Constitution gives only narrow jurisdiction to the Court, limiting it to mostly appellate jurisdiction. This means it must wait until a lower court has ruled on a case before the Court can hear a case outside of its original jurisdiction of “cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”

Moreover, Article III of the Constitution specifies that the Court may only hear “cases” and “controversies”, meaning the Court is not permitted to rule on nonjusticiable litigation. This was thought to place significant limitations on what the Court can consider, since it requires a case to be between two adversaries and that a remedy available through the judicial process. Therefore, the Court does not typically issue advisory opinions, hear collusive suits, rule on cases which are moot or no longer ripe, pass judgment on political questions, or decide cases where one or more of the litigants has a lack of standing.

Clearly, the text of the Constitution indicates the Framers’ intent to place the Court outside of extralegal influences than the other two branches of the Federal Government. However, the success of that endeavor is certainly subject to debate; for isolation from the political storm is not absolute.

The nomination process to the Court itself is political. First, a President is most likely to nominate an individual he or she knows well, so political friendships are a contributing extralegal factor to the Court. Second, a nomination is likely to reflect the President’s own political values and beliefs – a “litmus test” of a nominee’s ideological leaning – so how that nominee views a particular issue shapes the Court’s judgment. And third, since the nomination requires “the Advice and Consent of the Senate” to be ratified and have the justice seated, there are the political agendas of the members of the Senate to consider as well.

One must also consider the strategic behavior the Court frequently exhibits while maneuvering to get the ruling they want. Although precedent plays a key role when the Court hears a case and comes to a decision, there is plenty of built-in leeway to determine what cases on which to base that precedent. The Court often chooses to apply precedent from some cases while ignoring precedent from others – “cherry picking” – that may be just as applicable, in an effort to get the desired result.

The Court also considers compliance. Since the Court has no authority on its own to implement the law, it relies on the executive branch to enforce the rulings of the Court. As a result, the decisions it renders may take the wishes of the President into account when rendering a decision. For instance, in Marbury v. Madison (1803), it is quite likely that the Court was aware how negatively the Jefferson administration would react to a ruling that attempted to force them to take action. Because of such a threat to the Court’s legitimacy, the Marbury ruling was crafted in such a way