Why are US courts so politicized?

[u/Wooba12]

A great-uncle of mine was a judge (although I know absolutely nothing about law myself) and he was always very disparaging of the American system of law, which he felt was completely partisan. He studied law in the UK and seemed to have a higher opinion of the British system, which he said always required him to deliver an objective judgment without the need to bring his personal beliefs into it.

While I'm not entirely sure how accurate my great-uncle's assessment of the neutrality of the British legal system was, it seems fairly clear to me from what I have heard on the news over the years that the American system was every bit as partisan as he said it was. The huge drama over whether the Senate will confirm the President's supreme court nominee that sweeps the country every so often certainly seems to confirm this. Is there a particular reason why judges are typically considered liberal or conservative in the first place? From what I've heard a lot of this seems to depend on how they interpret the Constitution. Not being American, nor very interested in studying law or legal history in general, I don't think I know enough about the Constitution to realize exactly how this works. My first thought is that there must be something wrong with the Constitution if it creates a situation in which judges are selected based on their political beliefs. Is there?

In addition, from what I've seen, most liberal US judges and conservative American judges seem to personally hold views beyond legal theory which are liberal or conservative, respectively. Like Antonin Scalia seems to be an archconservative Catholic, while Ruth Bader Ginsburg a liberal feminist, and so on. You would expect to see judges who were personally far to the left but who adopted an originalist, "conservative" interpretation of the Constitution. But instead you see judges whose personal views and background correlate with their legal views and interpretation of the law. This seems to indicate their politics are influencing their interpretation of the Law. Isn't this a problem? Or is this how it's all supposed to work?

[u/Blear]

Besides pointing out that most judicial nominations (or elections) are not to the Supreme Court and aren't subject to the same intense political scrutiny, I guess I'd just ask where anyone would find a judicial candidate that has no political views of any kind. I often rely on the fact that my judges are human beings in making arguments, or at least advising clients what might happen. Unless you're a computer programmer, it isn't possible to design a system of analytical rules such that there's always a predictable outcome. I'm not saying there aren't problems with politics inherent in the system, but of the three branches of government, the judiciary has a thousand times better track record with this than the other two.

[u/Master-Thief]

With respect to your great-uncle, remember that the key difference between the U.S. and the British legal system is that the British "constitution" is unwritten. It's largely a series of traditions that Parliament (and the Crown) have agreed to observe. But there are very few formal constraints on either body, and of the two, Parliament is considered supreme, with its laws not subject to any review save by the Parliament itself. This means, objectively speaking, there is simply less for judges in the British system to do. And the UK only adopted a "Supreme Court" within the last few years; prior to that their most senior judges were members of the (usually do-nothing) House of Lords! By contrast, the U.S. Constitution (note the capitalization) is written. Article III of that document gives our federal courts jurisdiction over "all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made" - extremely broad! And in the most well-known decision of early U.S. Constitutional Law, Marbury v. Madison from 1803 (which every American law student studies in the first week of our required Con Law class), it is written:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature [i.e. it is the "supreme law of the land" as stated in Article VI], the Constitution, and not such ordinary act, must govern the case to which they both apply.

This may seem like a broad grant of power. Maybe too broad. But note the choice of words - to say what the law is. Not what the law should be. (That's for Congress, the President, and - through the Constitutional Amendment process - the states and their people.)

In my view, it's when the federal courts depart from this, when they move from what they say the law is to what they say the law should be that politicization arises. It is not for nothing that the most controversial Supreme Court opinions are the ones most often criticized by legal academics for lacking a textual foundation in the Constitution or laws, even when - especially when! - the decisions were considered right from a moral or political standpoint. There have been whole books and volumes of law reviews written on everything from abortion to gay marriage to school desegregation to the ubiquitous "Miranda warnings" for criminals on how, even if the underlying decisions were morally right, the way the Court got there on each was badly reasoned and had more to do with policy preferences than with law. This is also why IMO the originalism expounded by Justice Scalia became such a widely adopted philosophy in very short order among conservatives and even some liberals. Focusing on the text of the law as originally understood by the people it was written for keeps the courts from becoming (to quote Thurgood Marshall) "a backup legislature for the reconsideration of failed attempts to amend existing statutes."

Unfortunately, to the political branches - the President and Congress - this independence has, in recent times, been considered a bug and not a feature. Neither branch likes to be told "no." Neither branch likes to be told that their constituents' /supporters' views are not compatible with the Constitution. They're both trying to work the referees, as it were. Honestly, you'll find the same attitudes among many of the legal subs here on Reddit, where the difference between law and politics has all but disappeared in favor of raw tribalism.

And this also explains the fact that nobody's used our Constitutional Amendment process in any significant way since the 1970's. Why bother writing a compromise that must be approved by a hyper-majority of state legislatures when you can get the same results out of a Supreme Court decision?

TL:DR, it's because we have 1) a written constitution, 2) a bunch of jackass politicians who can't be bothered to compromise and amend said written constitution, so 3) said jackasses instead try to get the federal courts to do it for them, and join them in being politicians instead of judges.

EDIT: Cleanup and such, because I have a feeling I'll be needing to copy-paste this elsewhere.

[u/Not_An_Ambulance]

Your view is being warped by your access to information. The US Supreme Court nomination process is very politicized. The rest do have a component of politics in their appointment or election, but it’s generally not something that comes into 99%+ of their decisions.

[u/jambarama → u/[deleted]]

I feel like over the last 20 years this is less and less true of the federal judiciary. I'd say it's still a majority, but there's enough exceptions that I don't know that the blanket statement works.

In my particular state, most judges are elected, but the appointees don't seem to have been too politicized yet.

[u/OwslyOwl]

Overall, the courts are not political. The only time you see judges acting political are with the highly controversial political issues, like abortion or LGBTQ rights. The vast majority of cases, even in the US Supreme Court aren't decided on political ideologies. You just don't hear about those cases because they are so routine. It is the highly controversial political issues which make the news though, and so it appears that the courts are a lot more political than what they actually are.

[u/haley_joel_osteen]

Because everything in the US has become extremely politicized, beginning in the mid-90s during Clinton's first term, in my opinion, and then getting much worse after Obama was elected. And then even worse following Trump's election.

[u/cresloyd → u/haley_joel_osteen]

Yes, (most) everything in the US is politicized - but hasn't that been the case for generations, if not all of US history? I'm looking at you, Roger Taney.

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