On September 30, the John W. Kluge Center, the Brookings Institution, and the American Enterprise Institute, convened the latest panel discussion in the Pillars of Democracy series, this one on the causes of changing attitudes towards the federal judiciary, as well as the ways that the third branch of government can win Americans’ trust back.
Russell Wheeler, of the Brookings Institution, began the event by noting that the Supreme Court’s approval rating from the public is higher than that of the presidency or congress. At the same time, he said, many who are connected to the judicial system, even including Supreme Court justices themselves, are increasingly concerned that justices and judges more broadly are seen as unelected political figures who make decisions to achieve outcomes, rather than as neutral arbiters of the law. “One might argue that depending on how you define politics, and how you define law, it’s very hard to say that the Supreme Court is not a political institution making political decisions,” Wheeler said, laying out one of the main topics of discussion.
Randall Kennedy, Harvard professor, echoed the sentiment, saying, “it seems to me it’s quite clear that the Supreme Court of the United States is political. How could it not be?” Justices are nominated by presidents and confirmed by elected politicians, he said. “How could one explain the fights over confirmation if this is not political?” he asked. Comments from Supreme Court justices objecting to being seen as political, Wheeler said, are “ridiculous, and by that I mean actually deserving of ridicule.” He attributed the public’s seeing justices as political to increased realism that has punctured the myth of total impartiality.
Cathleen Kaveny, Boston College professor, agreed that the Supreme Court is inherently political, but said that “what we’re worried about is whether the court is being partisan, not just political.” Partisans, Kaveny said, are only concerned with the wellbeing of a part of the populace, and only consider the perspectives of that part on what counts as the common good. “Partisanship on the court undermines the rule of law,” she said, “which is meant to be equal, applied fairly, and independently adjudicated.” The real problem, Kaveny said, is partisan constituencies putting particular justices on the court and expecting “a certain kind of fealty from them as a result of that.”
Adam White, of the American Enterprise Institute, offered a different view on politicization. While White agreed that justices are selected through a political process and that their decisions have political ramifications, those decisions should be “rooted in something outside of the justice’s own desires, their own view of the good.” That something that justices should refer to, he said, is “American republican constitutionalism.” The ideal for a judiciary, White said, would leave as little space as possible for judges to make decisions based on their personal discretion.
Watch the full video of the event below and find out how panelists recommend we address the declining public trust in the judiciary.
And register now for the next Pillars of Democracy event, on the political parties, live on November 18 at 4pm.