18 Pages Posted: 15 Apr 2017 Last revised: 22 Jul 2017
Date Written: April 12, 2017
Politically controversial decisions and divisive nomination battles at the U.S. Supreme Court reflect a disturbing reality — the Justices’ personal ideologies exert undue influence on the Court’s work. The ability of a mere majority of conservative or liberal Justices to impose their perspective creates three serious and related problems: Members of the public who share the perspective of the Court minority lack meaningful representation on many important issues, the judicial appointment process has become highly politicized as each side fights for a Court majority, and we increase the risk of ill-advised decisions. Better decisions are made when they are based on a diversity of perspectives.
Accordingly, I argue for a Supreme Court that operates on an ideologically balanced basis. With ideological balance, the Court would provide meaningful representation to all, it would defuse the politicization of judicial appointments, and it would make wiser decisions. On the relevant metrics, a Court with ideological balance is superior to a Court that brings an ideological bias to its work. Indeed, it is difficult to identify a good reason for permitting the Court to function with a majority on one side or the other of the ideological spectrum. While we can point to the principle of majority rule to justify partisan control in the executive or legislative branches, majorities do not deserve special recognition in a judicial branch that should be guided by legal principle rather than popular sentiment.
Drawing on approaches at European constitutional courts and the New Jersey Supreme Court, I identify three models for achieving ideological balance on the Supreme Court and lower courts. I also discuss how a combination of those models would provide the best results.
Keywords: Supreme Court, Partisan Conflict
JEL Classification: H11, K40
Suggested Citation: Suggested Citation
Orentlicher, David, Politics and the Supreme Court: The Need for Ideological Balance (April 12, 2017). University of Pittsburgh Law Review, Vol. 79, No. 3, 2018; Indiana University Robert H. McKinney School of Law Research Paper No. 2017-4. Available at SSRN: https://ssrn.com/abstract=2950931