A Separation of Powers?

Posted on April 14, 2010


CC: UpstateNYer

Justice John Paul Stevens’s long-rumoured retirement has finally been confirmed and has, as tradition dictates, caused much speculation in Washington, D.C., and in the Anglo-Saxon media. Naturally, the debate is centring on who President Obama will nominate to replace Stevens on the nine-strong Supreme Court. This is hardly surprising given the weight and influence the Court has in American public life. Examples range from the recent overhaul of campaign finance restrictions in Citizens United v. Federal Election Commission to effectively legalising abortion in Roe v. Wade.

The Supreme Court is sometimes referred to as the third pillar of American democracy on account of its pivotal role as a guardian of the constitution in the famous system of ‘checks and balances’ between legislature and presidency. As such, at least in theory, the Justices on the Court are supposed to be independent ‘referees’ who serve the interests of the country through the constitution. This task seems to be somewhat at odds with how appointments are made. In a determined bid to maintain the system of checks and balances, the President nominates Justices and Congress votes on them. Thus, two of the federal political institutions decide on the composition of the third. In effect, they choose their own judges. This issue is illustrated quite well in current media debates over the often partisan considerations a President takes into account – who will best serve my cause and my party on the Bench?

There is, consequently, a danger that the judiciary is not as independent as one might wish. But, an alert reader might ask, what is the alternative? One option, at the other side of the spectrum, would be to have direct popular elections for Supreme Court Justices. This already takes place in the US at lower levels of the judiciary but it, too, has obvious flaws. One such is the inevitable populism it tends to encourage in prospective judges, something, surely, to be avoided in any judiciary.

Clearly, the UK has not provided a role model in these matters, at least hitherto, with the country’s highest court lodged, so to speak, in the upper house of the legislature. It will be most interesting to see if the newly created Supreme Court will work better. On the other hand, the UK might actually serve as an interesting example to other democracies that a separation of powers is not as pivotal as theory might dictate and does not deserve the emphasis it currently seems to enjoy across the Western world.