The United States of America has an intense ongoing debate concerning the elevation of Amy Coney Barrett to the Supreme Court. President Donald Trump’s four-year tenure ends shortly— the voting through postal ballots for instance, has already begun and the results of the elections will potentially be declared sometime next month. In the United States, unlike India (and the UK) Judges are purely political appointees.
Due to Justice Ginsburg’s death, there is now a vacancy on the Supreme Court. Out of the of 8 judges who are presently serving on the US Supreme Court, 5 already are perceived as ‘conservative’ and are Republican appointees, and three are ‘liberals’ and are appointed by the Democratic Party. Of the total nine Justices in the Supreme Court, two have already been appointed by Trump. If Justice Barret’s nomination is confirmed (which barring a moral awakening in the Republican Party, it will most likely be confirmed)— then Trump would have appointed 30 percent of the Supreme Court Justices in a mere four years of his Presidency. With the expected appointment of Justice Barrett, the number would go up to 6. There are four main concerns which her appointment would create.
The first concern that the presence of a majority of conservative judges pose would come in the form of docket control. The Court is quite selective in picking which cases to hear, and on average hears less than a hundred cases a year. For a matter to be heard by the judges, at least four out of the nine judges need to concur that the matter in question involves significant questions of interpretation and therefore merits the grant of a writ of certiorari. If any such matter does not find the concurrence of four judges, the writ of certiorari is cursorily denied. With the appointment of Justice Barrett to the US Supreme Court, there is quite a likelihood that the sharpy divided 5-4 would be a thing of past as the judges of the US Supreme Court not be particularly inclined to pick on matters which align the favour to the liberal society.
The second concern is that with her appointment, the Supreme Court now has the avenue to be politically conservative at best and outrightly favour the conservatives at worst. In the past, test cases have popped up before the Court which have lead to precedents that have lasted half a century. For instance, Plessy was a test case which swung the momentum for the separate but equal laws. It is not a fantasy to envisage a situation when a similar test case may be put before the Court, which might lead to overruling of a some of the most sharply dividing social issues such as the constitutional right to privacy, or the constitutional right of a woman to have an abortion. In the recent senate confirmation hearings, Justice Barrett was asked to share her opinions on abortion and the impending Obama Healthcare case. She deflected both these questions and did not answer them conclusively. She said that she would do what the law required her to do.
The third concern is the timing of this appointment. A little less than half a decade ago, upon Justice Scalia’s death in 2016, the then President, Barack Obama nominated Merrick Garland. Nonetheless then the appointment could not be finalised- largely owing to the timing of this happening in an election year. An unwritten convention was essentially formed. Four years hence, this was not seen as a concern (in some cases by those who had previously suggested that nominations should not be made in election years). This principle, then widely referred to as the ‘Biden rule’ clearly evaded Trump administration. It was also in breach of Ruth Bader Ginsburg’s dying wish- that her replacement not be made before the next elections.
Fourth, her appointment raises a broader question. Should judges be appointed by the legislative or indeed the executive at all? In a democratic setup it is crucial that a balance is maintained between the branches of the Government. If judges are also political appointees, it erodes a part of this principle. It also certainly breaches the adage that justice should not only be done, but also seen to be done. The irresistible inference is that the nominated judges come from a political nomination and thus the boundaries of separation of power and judicial independence are obscured. The United States appoints judges for life- thus the implications of any appointment are in all probability be felt for decades to come.
Neither the constitutions of India and the United Kingdom’s permit any political interference in the appointments process. In fact the Supreme Court of India outrightly rejected the National Judicial Appointments Commission. Similarly, removing judges from their posts is a cumbersome process that requires majority in both the houses of Parliament and is a power rarely used. No judge has been impeached till date. This ensures that the independence of the judiciary remains intact and proper checks and balances can be nourished.
It is also crucial to remember that whilst most organs of the state have inbuilt checks and balances- courts are mostly their own conscience keepers. They must lead by example-the constitution has given them tremendous powers and as the old adage goes, with great power comes great responsibility. The Supreme Court of the United States is responsible for its own image and its own conscience. It can be conscience of Dred Scott and Plessy orit can be the conscience of Brown v Board. Either way,the world will certainly be watching the developments in the worlds biggest exporter of democracy with close interest..
Raunaq Jaiswal is faculty member at OP Jindal Global University. he holds a LLM from Central European University, Budapest.
Vishavjeet Chaudhary is a barrister by training, currently Delhi based Advocate specialising in criminal law and constitutional law. He holds an LLM from the University of Cambridge.