Checks, Balances, and the Politics of the Judiciary

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President Obama and VP Biden with Supreme Court Justices. Photo courtesy of flickr user Pete Souza.
President Obama and VP Biden with Supreme Court Justices. Photo courtesy of flickr user Pete Souza.

The American judiciary has historically enjoyed a level of trust from the public not extended to Congress or the White House. This is due to the nature of its function. Meant to act as an overseer and interpreter of the constitutionality of the other two branches, the judiciary is inherently apolitical. This public trust, which has decayed for the American legislature and executive, is crucial for the function of the judiciary itself. If the public starts perceiving judges as political, then the legitimacy and relevancy of the position will begin to corrode.

Last week, a panel of Fifth Circuit judges ruled not to lift the lower court’s hold on President Obama’s immigration executive action. For immigration activists, the ruling, although disappointing, came as no surprise. The Fifth Circuit has a history of siding against the advocacy of undocumented immigrants and immigration reform in general, leaving little faith for positive rulings. For example, in 2011, the Fifth Circuit decided that the undocumented are not entitled to Fourth Amendment protections against illegal searches and seizures.

There’s no question that different levels of courts are perceived as more liberal or conservative, and the same goes for individual judges and justices. Jerry E. Smith, one of the judges on the Fifth Circuit panel who ruled against lifting the lower court’s stay, is a self-described, former right-wing activist who was appointed by Ronald Reagan. He once described feminists as “a gaggle of outcasts, misfits, and rejects.” His counterpart in the 2-1 ruling, Judge Jennifer Elrod, has a similar reputation as a conservative.

In the context of the ruling on immigration, and the impending rulings on issues such as marriage equality, has the increasing polarization of the other branches of government affected the judiciary? And further, is the judicial system being used as a vehicle for perpetuating a political agenda? One study argues that the American judiciary is highly politicized, especially at the level of higher courts. It asserts that ideology is, in fact, a large factor in judicial selections in Congress, which runs contrary to the intended role of the judiciary in the first place. Although the use of the judiciary as a political tool has worsened in the modern era of bipolarity, another study suggests that it has been used as such for centuries.

We assume that judges’ backgrounds don’t affect their judgement, and that they make decisions in an unbiased fashion simply because of the objective sanctity of their offices. But considering the decision history of the Fifth Circuit Court – or even just the role politics has played of late in the nomination of judges and justices – is it unreasonable to recognize the judiciary’s increased reliance on political reasoning? And what will public perception of the judiciary as politicized do to its reputation as an unbiased check of the executive and legislative branches?

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