The US presidential election, the Supreme Court and judicial appointments

After what seems like a very long campaign, Americans are voting today for their next President. The choice between Barack Obama and Mitt Romney is no doubt an important one (although its significance is perhaps exaggerated by the amount of media coverage: compare, for example, the much more limited discussion of changes, due imminently, at the top of China’s Communist Party).

One of the many reasons why the choice of US President is significant is that it is for the President to make nominations for membership of the US Supreme Court. And in the US, this matters – or is, at least, perceived to matter – much more than in the UK. Part of the explanation lies in the fact that the US Supreme Court has the final word over whether legislation is compatible with the US Constitution. It is, therefore, the Court that determines such questions as to what extent possession and ownership of handguns may be regulated (because of the “right to bear arms” in the Constitution). Incompatible legislation can be struck down by the Court: and because the Constitution speaks in lofty, general terms, it is open to a variety of interpretations. So, at the risk of oversimplification, Republican Presidents aim to appoint conservative Supreme Court Justices who are likely to interpret the Constitution accordingly, while Democratic Presidents seek to appoint liberal Justices.

Against this background, take a look at this article in the Los Angeles Times, in which Erwin Chemerinsky, Dean and Professor of Law at the University of California Irvine School of Law, considers how US Presidents can influence membership of the Supreme Court, and how differently constituted Courts may approach particular issues of constitutional controversy.

Because the US Supreme Court can strike down unconstitutional legislation, and because the UK Supreme Court cannot, it is easy to suppose that who the judges are – and how “conservative” or “liberal” they are – does not matter in the UK. But while the constitutional contexts are different, it would be mistaken to suppose that British judges wield no “political” power. On this point, this paper, from the University of Sheffield, is worth reading. Its authors argue that the UK Supreme Court “is in a position to exert a continuing influence over a wide range of policy issues”. As they go on to observe, once this influence is acknowledged, questions arise about the accountability of the Court for its policy choices: including, presumably, questions about how judges are appointed in the first place. If you want to read more about this in the UK context, Centre Forum’s report, Guarding the guardians: towards an independent, accountable and diverse senior judiciary, is a good starting-point.

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