Europe Shows a Polarized Supreme Court is Not Inevitable

The U.S. Supreme Court is riven by political division and the nomination process riddled by partisan battles, unlike Europe’s highest courts, argues David Orentlicher. 

By David Orentlicher

United States President Donald Trump has nominated Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. His choice solidifies a conservative majority on the nation’s nine-member highest court.

Trump’s conservative bench could overrule Roe v. Wade, eliminating women’s constitutional right to abortion. It also could condone political gerrymandering and put LGBTQ people at further risk for discrimination by employers, landlords and business owners.

A politically polarizing court is not inevitable. In some European countries, the judicial appointment process is actually designed to ensure the court’s ideological balance, and justices work together to render consensus-based decisions.

Europe’s Centrist Constitutional Courts

I am a scholar of high courts worldwide, which are typically called “constitutional courts.”

Europe’s constitutional courts differ from country to country, but they have some important similarities. They generally decide only constitutional questions posed by the legislature or by lower courts, rather than cases brought by individuals.

Oral arguments are rare, and the justices deliberate in private, considering written arguments. The courts generally have more members than the U.S. Supreme Court – 12 to 20 judges – but they also often operate in smaller panels.

Judicial appointments in such systems rarely provoke the kind of partisan confirmation battle that is likely to play out now in Washington.

That’s because many European countries ensure that all sides of the political spectrum have a say in choosing constitutional court judges.

In Germany, for example, the legislature conducts the appointment process in a bipartisan fashion. The political parties negotiate over the nominees, identifying candidates who are acceptable to both the left and right.

Because each justice must be approved by a two-thirds vote, all candidates need to appeal to lawmakers from across the political spectrum.

Spain and Portugal likewise require a legislative supermajority to approve constitutional court nominees.

In the U.S., by contrast, the president picks a Supreme Court nominee – in this case, Judge Kavanaugh, a conservative mainstay on the D.C. Circuit Court of Appeals. He must now be confirmed by a simple majority – 50 percent, plus one vote – in the Senate.

 Compromise Works

The French Constitutional Court

Many European courts also take a more centrist approach to issuing rulings.

Rather than deciding cases by majority vote, as the U.S. Supreme Court does, constitutional courts in Europe often operate on consensus. German and Spanish justices rarely write dissenting opinions to express their disapproval of a court ruling. Dissents do not exist in Belgium, France and Italy.

When all justices have to agree, compromise is essential.

The U.S. Supreme Court itself recently demonstrated this. More than a year elapsed between the death of Justice Antonin Scalia in 2016 and the appointment of Justice Neil Gorsuch in 2017. During that time the court was evenly split between liberals and conservatives, four to four.

The eight justices worked harder to find common ground on divisive issues. When asked to decide whether religiously oriented employers must provide health coverage that covers contraception, they fashioned a compromise: Insurance companies would be required to provide coverage to employees without the employers having to take any action to ensure that the coverage was provided.

Centrist Courts are Popular

Somewhere between two-thirds and three-quarters of Germans express confidence in their highest court, and approval is strong from both the left and right.

In contrast, public approval of the U.S. Supreme Court has been steadily declining for years. A majority of Americans once expressed strong confidence in the court. Today, a Gallup poll finds, only 37 percent do.

While public approval has historically tended to be similar for Democratic and Republican voters, the past two decades have seen increasing polarization. Currently, 44 percent of Republicans have a great deal of confidence in the court. Just 33 percent of Democrats do.

If Kavanaugh is confirmed by the Senate, the court will likely swing decidedly to the right, further polarizing Americans.

Conservative Americans can feel confident that their interests on abortion, civil rights and the role of religion in society are well reflected on the Supreme Court. Liberal and moderate Americans – who make up about 60 percent of the U.S. population – cannot.

A one-sided court majority also increases the risk of ill-advised legal decisions. Numerous studies on decision-making find that groups make better decisions when they take into account a diversity of perspectives.

Can the US Depoliticize its Courts?

The Senate and the Supreme Court could agree to do things differently in the United States.

Consensus-based judicial decision-making is only required by law in some European countries. Many European constitutional courts have simply imposed this norm upon themselves and developed policies to ensure consensus is reached.

The U.S. Supreme Court itself even observed a norm of consensual decision-making for most of its history. Until 1941, the justices typically spoke unanimously. Only about 8 percent of cases included a dissenting opinion. Now, one or more justices dissent in about 60 percent of rulings.

Chief Justice John Roberts has pushed for greater consensus on the court, saying that the court functions best “when it can deliver one clear and focused opinion.”

With Justice Kennedy’s retirement, Justice Roberts will sit at the ideological middle of the court. He could use that position to forge judicial consensus.

Going forward, the Senate could also insist on more centrist appointments. For example, it could refuse to confirm the president’s nominees if they do not appear on a list already approved by a special bipartisan Senate committee.

Political polarization in the United States has led to highly partisan battles over Supreme Court justices, jeopardizing the credibility country’s celebrated highest court. European countries have figured out how to minimize partisan conflict in their judicial systems.

The U.S. would do well to follow that example.

This article was originally published on The Conversation.

David Orentlicher is a Professor of Law and Co-Director, Health Law Program, University of Nevada, Las Vegas

17 comments for “Europe Shows a Polarized Supreme Court is Not Inevitable

  1. Neil harris
    July 20, 2018 at 06:07

    Forgive me the intrusion but

    I thought the problem with the supreme court is that it is populated too much by right wing ideologues?

  2. Jeff Harrison
    July 12, 2018 at 21:48

    One wouldn’t think that judicial decisions would be partisan but….. The big problem in the US is that the courts seem to be the battleground for groups who wish to see their social agendas codified into precedent. Most of the big issues I see as overreach. Is there anything in the constitution about the government controlling marriage? (hint: the answer is no). This hasn’t prevented governments at a variety of levels from regulating marriage. Now, the constitution only applies to the federal government directly so there’s nothing to prevent state governments from regulating marriage. Except for the equal protection clause which requires groups to be not discriminated against. One would think this was simple enough but we are dealing with lawyers who are generally weasels and would happily argue that black was white. Sadly, this does not cause them to be run over at the next zebra crossing. While I am arguing here for keeping religion out of government and the laws, there is another reason why the US is so dysfunctional. We refuse to play nice with others. Not only do we not want to accommodate other view points, in some cases the other view points want to impose tests not recognized by the constitution. Bi (or, preferably, multi) partisan consensus as opposed to one party ramming their preferred candidate through will produce more long term harmony. But… any perusal of our actions in the world today suggests that harmony is actually an afterthought if it’s thought about at all.

  3. July 12, 2018 at 19:17

    Professor Orenlicher ignores other differences.

    The biggie, as someone like David Lazare, a commenter here, could tell him, is the frozen, ossified, hard-to-change nature of the U.S. Constitution.

    Related to that, and primarily on the conservative/GOP side but also too much on the liberal/Democrat side (not a part of the duopoly here), is the ossified mindset that treats the U.S. Constitution like the King James Version.

    Third, and related to the second, is the enshrinement of the Supreme Court that parallels the enshrinement of the Constitution.

    Fourth, and biggest, Orenlicher ignores the differences between Continental and Anglo-American jurisprudence. For example, Anglo-American common law doesn’t exist on the continent.

    This piece sounds great, but in reality, it isn’t.

    • July 12, 2018 at 19:22

      I really can’t believe the fourth issue. Orentlicher, if he has indeed studied international court systems, knows the difference between Continental and Anglo-American law systems. One notes that he doesn’t reference any courts from that system. And surely, he knows the ossified nature of the US Constitution and the difficulty of amendment gives the US Supreme Court more “throw weight.” With further thought, the piece feels almost duplicitous.

  4. Yuri
    July 12, 2018 at 19:01

    Once I read about a “constitutional right to abortion” I was ready to throw this fawning globalist piece into the garbage bin but I read and reread it. The hysteria behind appointing a one constutionalist judge is as usual overblown by the academics of du jour. If the “LGBTQ” and abortion rights are constitutional why worry that a jurist who believes in the document would want to overthrow the very principles which guided his bosses and colleagues (Kennedy, Kagan) in recent past. We are fortunate that we do not have European politburo courts which offer no recourse to the eternally “wise” decisions of the super consensual majority (modern dictatorship, if you ask me). Don’t like what the court does, have your state remedy the problem or go and elect a House member or a Senator who agrees with you and will set up the laws to your liking. None of these options are available to the over complacent Europeans who just sweep their problems under the stale rug of “European unity” only to see it crack and explode under the current cultural and population currents. The conservative Poles, unemployed and aggrieved Italians, the xenophobic Hungarians, the fascist Ukrainians and, of course, the French and German Muslims are not going to go along with “Danish” or other values in the not very distant future regardless of the agreed upon laws and rules that are proscribed from the aging constitutional benches of Europe. The elite that sits on these benches is not subject to any sensible democratic influence and unlike the American ruling classes is not even ever threatened by the forces of modernity which will consume the European puddles in hellfire of the conflict between rising anti progressive rising populations of the world and the heavily armed thugs from across the Atlantic. At least here I have the illusion that my vote matters and hopefully plays a minuscule role in slowing down our common ride to hell, a surely to-be-biased Supreme Court notwithstanding.

  5. Guest
    July 11, 2018 at 18:28

    The western european nations tend to rank low in ethnic diversity relative to the US.

    Exceptions are Canada (yes, I know it is not in Europe), Switzerland and Belgium. Canada and Switzerland have relatively decentralized governments and are still predominantly populated by those of European ancestry. Belgium has had significant discord in recent years based on language and cultural differences.

    The US has a population increasingly made up of those with non-European ancestry. Further, they are encouraged to maintain their ethnic identity and vote along ethnic and racial lines.

    Contrary to what the Left says, diversity is not necessarily a strength.

  6. rosemerry
    July 11, 2018 at 15:52

    It is not only the SCOTUS. As a foreigner, I am appalled at the appointments of judges to all sorts of courts made by partisan “leaders” and with results easy to see in so many parts of the country. Laws, lawmakers, but very little justice.

  7. Theo
    July 11, 2018 at 13:29

    In Germany we have actually two Federal Supreme Courts.
    1.The Federal Supreme Court”Bundesgerichtshof (BGH)”which is the last court of appeals It’s decisions are final.(penal and civilian).
    2.The Federal Constitutional Court.”Bundesverfassungsgericht (BVG)”.That’s the Court to which any person can turn who is on German soil who thinks their constitutional rights are being violated by authorities or the government.They deal only with constitutional matters.But you need strong and well documented proof.It’s a long way and most appeals are not admitted.

  8. Kalen
    July 11, 2018 at 08:34

    Any court system is created to enable cheaper than violence assurance of continuation of given political regime that created it.

    Case in point EU Financial crisis 2009-2011 and massive EU Central banks uprecedented bailout of gambling oligarchy including foreign oligarchy and banks risking taxpayers money or strictly giving away money with no strings attached. The same was in US.

    Hundreds of law suits filed in EU countries and European Court system.

    100% lost when crime of stealing or misappropriations of funds to private parties and debt swapping between government agencies, and Banks in Italy or Greece or Germany insolvent today as Deutsche Bank owned worthless Greek debt instruments were purchased by German government for 100% on a dollar which then issued bonds bought by ECB that printed Monet from think air to purchase it, to restore Bundesbank cash balance.

    Here you have your courts rubber stamping robbery of national treasure in US as in EU saving regime alone while sending population huge bill for new generations to pay, destroying lives and future of millions.

  9. Sally Snyder
    July 11, 2018 at 07:26

    Here is an interesting look at how politically polarized the United States has become and one of the fears that this division has created among American voters:

    The political future of the United States depends on informed and intelligent voting to prevent the option of civil strife.

  10. michael
    July 11, 2018 at 07:22

    Almost all European countries have proportional voting; if a party gets a certain percent of the votes, those voters are represented in government. LBJ championed “first past the post” district voting, which Congress codified into Law; only the top vote-getter wins creating the adversarial, partisan politics we have today. The Supreme Court at one time gave lip service to merit. David Souter turned out to be much more liberal than his track record suggested, and since then, the party in power has leaned much stronger on ideology in their appointments.

    • strngr-tgthr
      July 11, 2018 at 10:31

      No. Obama very intelligent was trying to do exactly this make the court more centrist with Merrick Garland but the Republicans only want there way. Hillary would have done the same as she is even more centrist than Obama. The American system does work with intelligent leaders. So, sadly it goes back to the same thing, to investigate the TRUTH about how Trump got elected. (sigh)

      • Guest
        July 11, 2018 at 18:34

        Isn’t this the VOTERS fault? And haven’t we made voting easier (register at DMV and welfare offices, ballots in multiple languages, vote by mail) and expanded the franchise (reduced age to 18). Some areas let non-citizens vote and are considering reducing the voting age to 16. And don’t forget our far more “diverse” voting population. Yet no one would agree that our candidates are better, even the ones that get elected.

  11. Sam F
    July 11, 2018 at 07:16

    The suggested remedies will not work because they ignore the fact that Congress represents only the right-wing dictatorship of the rich.
    1. It makes no difference whether the Senate pre-selects candidates: it is owned by the rich and is in no way representative of the people;
    2. The chief fake judge Roberts is certainly not “at the ideological middle” and is extremely corrupt, with corrupt clerks who refuse all cases they cannot throw to the rightwing.

    Let us not be naïve: the federal government cannot be reformed by those ignorant of the source of its corruption, the economic power against which the founders did not protect its institutions. It is now irreversibly corrupt, will not fix itself, and must be replaced. The same is true of the US mass media. Economic power must be removed from government.

    • Skip Scott
      July 11, 2018 at 08:23

      Sam F-

      You’ve got it exactly right. Removing economic power from government is our only hope. It has entirely corrupted all three branches.
      This Princeton study nails it.

      • backwardsevolution
        July 11, 2018 at 15:17

        Skip Scott – that was a very good article. Thanks for posting it.

        Sam F – yep, money must be stripped from the election process. It’s not so much “right-wing”, because we all know by now that the “left-wing” is equally corrupt. But you did hit on the correct description, though, with the word “elite”. The whole shebang is being run for the benefit of the rich elite. It explains why the interests of the common man are not even being considered. It explains NAFTA, TPP, open borders – all things the elite want. It would take a good understanding of what’s truly going on by the voters, and most likely some kind of revolution to change it, because we all know the elite would fight tooth and nail to maintain their lucrative looting machine.

      • Sam F
        July 11, 2018 at 19:46

        Thanks, a fine article on the devastating Princeton study; worth referencing.
        @b-e: very true; voter understanding will likely be very costly to humanity.

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