Political Weapons or Judicial Officers: How the United States Supreme Court's Increased Political Polarisation Highlights an Immediate Need for Reform

Authors

• Marcello Jones

Abstract

The “politicization of justice” has become a most unwelcome stereotype for our nation’s highest court. While it is understandable that Justices must still judge, and so in a practical matter, leaving their political views at the door is not always possible. When society can accurately and consistently predict the Justices’ votes solely based on their political ideology, it is difficult to see past the view that the Justices are consistently manipulating the Constitution and the facts of the cases before them to serve their own political agenda. And when an Executive can be elected into office primarily based on the Court overturning a long-standing Constitutional right, and when that Court—comprised of Justices placed there by the same Executive—then follows through on that promise and aligns itself with the Executive’s ideological viewpoint, major questions must be raised. This Article argues that the Appointments Clause is the source of this abhorrent issue. Thanks to the politicized process by which Supreme Court Justices arrive on the bench, politics and the Judiciary’s propensity to allow it to seep into its legal reasoning have blurred the lines of governmental separation of powers and prohibited the judiciary from being the last line of defense to an encroaching representative body that the Framers designed the judiciary to do. This Article argues that the Appointments Clause must be amended based on the United Kingdom Supreme Court’s independent selection commission process. This proposal would mean that, when a vacancy on the Court arises, the United States Supreme Court Chief Justice would convene an independent selection commission, headed by the ABA president, with four other distinguished judges and/or legal scholars randomly selected from the ABA’s rolling selection committee. This amendment would mean that the Executive would have limited control over who arrives to the Supreme Court, and the decision would be made entirely by an independent body, free from political pressure.

Recommended Citation

Marcello Jones, Political Weapons or Judicial Officers: How the United States Supreme Court's Increased Political Polarisation Highlights an Immediate Need for Reform, 36 U. Fla. J.L. & Pub. Pol'y 629 (2026).
Available at: https://scholarship.law.ufl.edu/jlpp/vol36/iss3/6