Opinion: The legitimacy of the Supreme Court is in danger


Editor’s note: This Sunday, October 2, at 8 p.m. ET and PT, CNN will air Fareed’s latest special report, “Supreme Power: Inside the Highest Court in the Land.” This article is adapted from Fareed’s closing remarks in this special. See more opinion at CNN.


The power of the first branch of the US government, Congress, comes from its ability to tax and spend, a formidable force. The power of the president, the second branch, crucially includes his role as commander-in-chief of the armed forces. The power of the third limb, on the other hand, is technically its symbolic authority.

The Supreme Court cannot enforce any of its own decisions. It counts on the other branches and the public to accept them. This is why the legitimacy of the Court is so important.

And that’s why actions that make the Court appear more partisan, more radical, more out of touch with the country, are so dangerous.

The Court’s approval rating, a rough measure of legitimacy, has been falling for decades. And it fell sharply after Bush vs. Gore.

It was an openly partisan decision in which conservatives, who had long championed states’ rights, suddenly discovered that the federal government had a crucial role in the 2000 election.

But that was only a very visible example. The Court has become more ideologically predictable – that is, politically partisan – in recent years. Republican-appointed judges almost always govern the way Republicans want them to. Ditto for the judges appointed by the Democrats. It’s all part of the hyper-polarization of American life.

But it’s also partly because of the strange way America’s highest court is structured. You may be surprised to know that no other major democracy grants members of its highest court a term of office for life.

Most Western countries have fixed durations or mandatory retirement ages: 68 in Germany, 75 in Britain, 75 in Canada. Germany gives its Constitutional Court judges 12-year terms, as do some other democracies.

The American selection system is also extraordinarily political. In many European countries, on the other hand, there are panels of experts which play an important role in the sending of candidates or their selection. Membership of committees is often designed to be bipartisan and involve legal experts. For example, the French Superior Council of the Judiciary is mainly composed of elected judges and a few appointed by other authorities. Britain has a somewhat similar selection process. And it is rare to reject the opinion of these bodies.

Some European supreme courts are required to rule by consensus rather than majority vote, and they are often careful not to voice political divisions.

In Italy, Belgium and France, for example, magistrates of the high courts do not publish dissenting opinions in order to maintain the image of impartiality of the court.

Perhaps the most glaring aspect of the American judicial system is the one that is now close to unique: life tenure. This raises the stakes very high. Judges can exercise their power longer than most dictators; some remain in the field for decades. Clarence Thomas, for example, has served on the Supreme Court for almost 31 years and is now 74 years old.

The price is to find young magistrates, in order to perpetuate their reign as long as possible. For a budding judge, ideological rigidity and consistency of steps are now the most valuable signals to their party that they should get the nod. And a middle-aged, middle-aged, extremely distinguished, ideologically moderate judge — in other words, a judge with a perfect judicial temperament — doesn’t stand a chance.

And, of course, there is the uncomfortable question of mental deterioration, which is certainly worth considering when judges could rule into their 80s and beyond on very important issues involving new technologies. , complex economic systems and legal theories.

The United States Supreme Court has taken a direction that has weakened its own legitimacy. It could be an opportunity to start a national conversation about what reforms could be put in place to make it less partisan, less divisive, and more trustworthy by the vast majority of citizens. After all, that’s the only way his decisions will be truly accepted in a diverse democracy of over 330 million people.


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