Constitution & Culture War
At a time when the politicization of the judiciary has reached Germany it might be useful to look to the United States to see what it can lead to. Of course, the judicial systems on both sides of the Atlantic vary, but recent developments are showing certain similarities due to the way social media frame the political discourse. The algorithmic logic of media platforms enables well organized right-wing minorities to use issues like abortion to politicize the selection of judges and court verdicts. Without his election promise to Evangelicals and conservative voters to stack the Supreme Court with “pro-life” judges in 2016 Donald Trump could not have won his first presidency; and without the conservative judges he has appointed since then the country’s current drift into autocracy would not be possible.
Looking back at the history of the Supreme Court of the United States (SCOTUS) there have always been political fights about its interpretation of the constitution. When the Supreme Court blocked some of President Franklin D. Roosevelt’s New Deal laws, he threatened to increase the number of judges to further his political agenda. Later the court ignored the obvious violation of the constitution through the continuing segregation practices in southern states for years before it was pushed to underpin the political reforms of the Civil Rights legislation between the late 50s and the late 60s.
Two traditional patterns emerged. Firstly, the judges’ appointment for life creates a time lag so that liberal or conservative jurisprudence is continuing long after the respective politics might have changed. And secondly, the court reacts often belatedly and reluctantly to changes brought on by civil society, by ordinary people fighting for their rights in lower courts and by liberal litigators suing state agencies for the violation of citizens constitutional rights.
After a post-war period, when Democrats appointed conservative judges and Republicans liberal ones, after Chief Justice Earl Warren, himself a Republican, oversaw a series of historic progressive decisions, the polarization of the judiciary started in the 1980s under Ronald Reagan. With this new crop of Republican judges, “originalism” - the judicial theory that the text of the constitution must be read like the white men of 1788 understood and ratified it - was used by the court as a tool to establish conservative orthodoxies. The dismantling of voting rights legislation (2013) and of environmental legislation (2022) were only some of the contested judgments in this long-term conservative shift of the court.
But the decisive event for enabling a takeover of the US-Supreme Court by right-wing ideologues was political. After the death of the arch-originalist judge Antonin Scalia in February 2016 the Republican Leader in the US-Senate Mitch McConnell promised to block any replacement by the Democratic Administration “until we have a new President”; thus, linking the appointment process to the presidential election nine month later.
This unprecedented and populist decision by the Republicans in the US-Congress conflated Constitutional Law and politics. It ensured that Donald Trump could canvas among Evangelicals and conservatives with the promise to appoint judges who would then overturn the historic Roe-versus-Wade judgement of 1973 granting American women the right to choose. And so, he did - by publishing a list with “pro-life” judges he would consider for Supreme Court vacancies; and so, he won – with 80 % of evangelical Christians voting for him.
Donald Trump did not stop there with the politicization of SCOTUS. Once president he appointed two socially conservative male judges. And when the liberal icon on the court, Ruth Bader Ginsburg, died, Trump replaced her with Amy Coney Barrett, pushing her appointment through a Republican dominated Congress only five weeks before the 2020 election. No mentioning then of “giving the American people a voice in her selection”, as Republicans had argued four years earlier.
The promised overturn of Roe v. Wade duly happened on June 24, 2022, with the Supreme Court ruling in the “Dobbs” decision that the Constitution does not confer a right to abortion and by returning the authority to make laws concerning abortion to the states. The promise of the Democratic Party to bring back women’s right to choose helped them winning more votes than expected at the mid-term elections of the same year. But it did not help Democrats to prevent a second Presidency of Donald Trump in November 2024.
Today, the results of the long-term politicization of the judiciary leading to a Supreme Court stacked with ideologues and yes-men/women are clearly visible. With its 6:3 conservative majority the Trump-Court has taken away women’s right over their bodies but has given almost complete immunity to the scoundrl in the White House; it is now endangering the rights of migrants and their families but provides new powers to the “mad king” as President. It is waving people’s rights and condoning the bypassing of Congress by the Executive.
For the US-Supreme Court to fulfil its function in protecting citizens against government overreach it takes two things: an executive bound by a fair process of appointing judges and a Senate to commit itself to their confirmation. Both preconditions for a functional division of power have been abandoned over the last decade. As a result, American citizens are losing trust in one of the country’s once most venerated institution.
In the past Supreme Court judges where still looking for some basic consensus in drafting their different opinions. That consensual practice has gone with the Trump years. And recently the politicisation has even reached the inner workings of the court itself. After the Supreme Court has given Trump further leeway in implementing his controversial Executive Orders on birthright and immigrant rights even the three-women strong liberal minority on the court has started splitting in their judicial response. And under the pressure of crude attacks on social media the disagreements between the judges have become personal.
It is the 54-year-old Justice Ketanji Brown Jackson, the first black women and newest member on the court who wrote the most scathing opinion calling Donald Trump’s contested Executive Order on birthright “an existential threat to the rule of law”. Even her two liberal colleagues did not go that far in their dissent with the 6:3 majority decision to let the President question the traditional and constitutional right of anybody born on American soil to US-citizenship.
In turn her conservative colleague Amy Coney Barrett accused Jackson of “leaving conventional legal terrain” when she writes that the President’s Executive orders “are creating a zone of lawlessness”. And indeed, with democracy in peril, Jackson’s recent opinions suggest that in her view judicial resistance must become more political.
Both female justices have been under enormous pressure built up via social media. As the New York Times reports “Justice Barrett was the target of ugly criticism from the right for minor deviations from Mr. Trump’s legal agenda, with some of his allies calling her a DEI hire, suggesting that she had been only chosen for her gender.” The same critics are now celebrating her pointed criticism of Justice Jackson believing that their earlier attacks on the conservative justice has succeeded in bringing her into line with the President’s directives.
What has started as the long-term polarization of the judicial system, what - induced by the abortion issue - has accelerated into the dramatic politicization of the US-Supreme Court, has now led to personal fights between judges about the fundamental question: what to do when the orders of the courts are defied. And this judicial spectacle is playing out in the arena of a vicious platform-based discourse where the appointments and opinions of constitutional judges have become part of the ongoing culture war. Any lessons to be learned?