The US Supreme Court: From impartial arbiter to political battleground

The Supreme Court, made up of eight justices, is the highest tribunal in the United States for all cases and controversies arising under the Constitution. Historically, the court has been perceived as unmoved by political change, with an intrinsic quality being its political neutrality. Recently, however, we have witnessed monumental decisions and controversial nominations that have led to the questioning of its impartiality. According to Gallup, in September 2024, 58% of Americans disapproved of the way the court was handling its job, raising significant issues with the court’s legitimacy. Indeed, it feels necessary to ask whether an apolitical branch of government exists in the United States, or if an apolitical branch is even possible in the current political climate.

With the President having the power to nominate Justices, the nomination process is inherently political

A massive point of concern has been the upholding of judicial ethics. Within the ‘Code of Conduct for United States Judges’, Canon 2 states that ‘ a judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.’ This is intended to maintain justice and neutrality when the Constitution is interpreted, given the nationwide impact a Supreme Court ruling can have. For example, Justice Alito has been scrutinised for his family flying flags at his home that are considered symbols of the Capitol rioters.

Arguably, however, with the President having the power to nominate Justices, the nomination process is inherently political. Currently, conservatives hold a strong majority with six justices on the bench, three having been selected by President Trump. However, questioning how political beliefs would impact the Supreme Court’s ‘neutrality’ emerged with the nomination of Judge Bork in 1987. Bork, being a circuit court judge, Attorney General for the United States, and Solicitor General in the U.S. Department of Justice, had impressive professional qualifications. Yet his ideological compatibility and strict interpretation of the Constitution led to his failed nomination. This case exemplifies the power of the Senate, as well as the President, in the nomination process. Indeed, with the Senate and President both political, it is inevitably difficult for a judicial appointment to remain apolitical.

Another aspect of the Supreme Court that has been questioned is lifetime appointments. Under Article III of the Constitution, Supreme Court justices are appointed for life, in an attempt to insulate the Supreme Court from ever-changing electoral and political concerns. This can be problematic, as some scholars have theorised that justices can plan their retirements strategically so that their successors have similar ideological views. Furthermore, President Nixon was able to make four appointments in five years, unlike President Carter, who was unable to make any. This causes an unfair distribution of power to different Presidents and creates concern that some political leaders will be able to leave a longstanding legacy within a ‘politically neutral’ branch.

There have been suggestions for the reduction of lifetime appointments to a set term, this could be an interesting structural change to implement in order to keep the judicial branch more representative of the current population

This has become particularly true under the Trump administration, where he forged a Republican majority in both the Supreme Court and the circuit courts. Interestingly, his legacy within the Supreme Court will most likely outlive Trump himself.

There was a particularly strong politicisation of the nomination of Judge Amy Coney Barrett in 2020. Indeed, it was perceived by then-House Speaker, Nancy Pelosi, that the appointment of Barrett would influence women’s rights, LGBTQ rights, and the future of democracy. This concern has turned into reality, with the Dobbs v. Jackson ruling in 2022 being dependent on Barrett’s appointment to the Supreme Court.

Some have argued that the Supreme Court has not become politicised. Instead, the media’s portrayal of the Supreme Court has led to the public perception of an unjust judicial branch. The media works to deliver information to the public; however, this can lead to the misrepresentation of judges or cases. For example, judges are increasingly being labelled “Trump judges” or “Obama judges” due to the media’s oversimplified portrayal of the Supreme Court.

Indeed, issues around judicial ethics and lifetime appointments suggest that the Supreme Court has become a political battleground, instead of a neutral arbiter. This, however, is a structural issue, as the nomination process can too easily be politicised by the executive or legislative branch. There have been suggestions for reducing lifetime appointments to a set term, this could be an interesting structural change to implement to keep the judicial branch more representative of the current population. However, with the Supreme Court having control over decisions of national importance, it feels inevitable that the Supreme Court will always spark some controversy. Furthermore, with the beginning of the 2025 Trump administration, it seems that now, more than ever, the Supreme Court will become entrenched as a political battleground.