Opinion / Christopher Cermak
Legal trouble
It’s one of the contradictions of a liberal democracy that, while we believe that voters have the right to decide who governs them, we consider the independence of courts to be essential to the smooth functioning of the system. It’s why any elected governments that seek greater control over their judiciaries – here’s looking at you, Poland and Hungary – are ominously warned of the slippery slope to autocracy that follows.
How do you achieve that independence? By keeping electoral politics out of it. Judges nominated to Germany’s Federal Constitutional Court, for example, require a two-thirds majority of lawmakers to be approved, making it almost impossible for one political party to control the process. The UK takes nominations out of politicians’ hands altogether: the Supreme Court’s 12 justices are appointed by an independent commission. This, in turn, breeds legitimacy. We trust that judges are impartial arbiters of the law and we accept their decisions as a result.
By contrast, the US Supreme Court nomination process has gone dangerously off the rails. The court’s current six-three conservative majority is hardly reflective of a country that has elected Democratic presidents in five of the past eight elections. Rather, it was engineered by Republican lawmakers who have dangerously politicised the nomination process (not that Democrats are free of blame for politicising the process).
This is the backdrop for this week’s leak of a draft decision by the Supreme Court ending the constitutional right to abortion, which – if approved as expected in the coming months – would end nearly 50 years of precedent. The ruling would also hand conservatives the biggest judicial victory of their lifetimes. But at what cost? Judicial independence? A functioning democracy? That’s a very slippery slope indeed. Lawmakers on both sides of the aisle must work to reform the nomination process and take themselves out of the equation before it’s too late.